A-1-CA-39734•October 27, 2022- State of New Mexico v. Thomas C. Ferguson, No. A-1-CA-39734
October 27, 2022- State of New Mexico v. Thomas C. Ferguson, No. A-1-CA-39734
A-1-CA-39734Nmctapp
Testo completo
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 Opinion Number: __________________ 2 Filing Date: October 27, 2022 3 No. A-1-CA-39734 4 STATE OF NEW MEXICO, 5 Plaintiff-Appellee, 6 v. 7 THOMAS C. FERGUSON, 8 Defendant-Appellant. 9 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 10 Matthew E. Chandler, District Judge 11 Hector H. Balderas, Attorney General 12 Santa Fe, NM 13 Charles J. Gutierrez, Assistant Attorney General 14 Albuquerque, NM 15 for Appellee 16 Eric D. Dixon, Attorney and Counselor At Law, P.A. 17 Eric D. Dixon 18 Portales, NM 19 for Appellant 20 Court of Appeals of New Mexico Filed 10/27/2022 9:28 AM
OPINION 1
BOGARDUS, Judge. 2
{1} Defendant Thomas Ferguson appeals his conviction of embezzlement, 3
contrary to NMSA 1978, Section 30-16-8 (2007). Defendant argues the district court 4
erred by (1) denying his motion for a directed verdict, (2) allowing the State to cross- 5
examine him regarding prior convictions for receiving stolen property, (3) permitting 6
the State to amend the date of the charged offense, and (4) instructing the jury to 7
disregard defense counsel’s comments during closing argument relating to the 8
court’s dismissal of a separate charge. We affirm. 9
BACKGROUND 10
{2} On December 11, 2019, Joseph White brought a 2008 Chevrolet pick-up truck 11
(the truck) into an automotive shop operated by Defendant for repairs. Defendant 12
told White there was a problem with the transmission, but that he could order one, 13
and White gave Defendant a check for $3,630. The check’s memo line stated, “2008 14
Silver[ado] Transmission.” Defendant cashed the check. Over the next several 15
months White regularly checked with Defendant about the truck, and Defendant 16
gave White inconsistent explanations about the transmission’s status. On May 1, 17
2020, White had the truck towed from Defendant’s shop. The truck had been 18
damaged and was missing parts. The State charged Defendant with embezzlement 19
and criminal damage to property. 202
{3} At a jury trial, the district court directed a verdict against the State on the 1
criminal damage to property charge; the jury returned a guilty verdict on the 2
embezzlement charge. Defendant appeals. 3
I. The District Court Did Not Err in Denying Defendant’s Motion for a 4
Directed Verdict 5
{4} Defendant argues the district court erred as a matter of law in denying his 6
motion for a directed verdict, contending there was insufficient evidence to prove 7
embezzlement. “We review denials of directed verdicts by asking whether sufficient 8
evidence was adduced to support the underlying charge.” State v. Johnson, 2010- 9
NMSC-016, ¶ 57, 148 N.M. 50, 229 P.3d 523 (internal quotation marks and citation 10
omitted). “Questions of sufficiency that require us to engage in statutory 11
interpretation present a question of law which is reviewed de novo on appeal.” State 12
v. Kalinowski, 2020-NMCA-018, ¶ 7, 460 P.3d 79 (alteration, internal quotation 13
marks, and citation omitted). “After reviewing the statutory standard, we apply a 14
substantial evidence standard to review the sufficiency of the evidence at trial.” State 15
v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891. 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 of guilty beyond a 18
reasonable doubt with respect to every element essential to a conviction.” State v. 19
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and 20
citation omitted). “Substantial evidence is relevant evidence that a reasonable mind 213
might accept as adequate to support a conclusion.” Id. ¶ 53 (alteration, internal 1
quotation marks, and citation omitted). When reviewing for substantial evidence, 2
appellate courts “view[] the evidence in the light most favorable to the guilty verdict, 3
indulging all reasonable inferences and resolving all conflicts in the evidence in 4
favor of the verdict.” Id. ¶ 52 (internal quotation marks and citation omitted). We 5
also disregard all evidence and inferences that support a different result. See State v. 6
Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We measure the 7
sufficiency of the evidence against the jury instructions given, which become the 8
law of the case. State v. Jackson, 2018-NMCA-066, ¶ 22, 429 P.3d 674. 9
{6} Here, in relevant part, the jury was instructed that to find Defendant guilty of 10
embezzlement the State had to prove beyond a reasonable doubt that Defendant (1) 11
was entrusted with $3,630, (2) converted this money to his own use, and (3) at the 12
time Defendant converted the money, he fraudulently intended to deprive the owner 13
of the owner’s property. See UJI 14-1641 NMRA. Defendant’s arguments address 14
the elements of entrustment and fraudulent intent. 15
A. Entrustment 16
{7} Defendant argues there was no entrustment, contending that once he received 17
the check on December 12, 2019, the money became his personal property. As a 18
result, Defendant asserts he could not have converted the money because the money 19
was not another’s property, as required to sustain an embezzlement conviction. 204
Defendant also asserts that when “theft-temporary taking involves an advance 1
payment of money, the [S]tate must establish a fiduciary relationship” and points 2
out that a mechanic is not a fiduciary. We are unpersuaded. 3
{8} “While some jurisdictions may require a special fiduciary relationship, such 4
as employment or agency, as an element of the crime [of embezzlement], New 5
Mexico does not.” State v. Archie, 1997-NMCA-058, ¶ 3, 123 N.M. 503, 943 P.2d 6
537. New Mexico instead applies the common meaning of “[e]ntrustment,” see State 7
v. Moss, 1971-NMCA-117, ¶ 6, 83 N.M. 42, 487 P.2d 1347, which “occurs when 8
property is committed or surrendered to another with a certain confidence regarding 9
the care, use, or disposal of that property.” Archie, 1997-NMCA-058, ¶ 4. However, 10
“[o]ne cannot be guilty of embezzlement if he converts his own property; the 11
property converted must be that of another.” Kalinowski, 2020-NMCA-018, ¶ 10 12
(internal quotation marks and citation omitted). We must therefore determine 13
whether the check for $3,630 was White’s property, such that Defendant was 14
“entrusted” with it, or whether that money became Defendant’s property upon 15
payment, precluding a finding of entrustment. 16
{9} In the context of advanced payments to a building contractor, this Court has 17
recognized that “[a] building contractor who receives from the landowner an 18
advance payment on the contract and who thereafter spends the money for his own 19
purposes and does not fulfill the contract, is not guilty of embezzlement, unless the 205
money is earmarked to be used only for a construction purpose.” Id. ¶ 13 (emphases 1
added) (internal quotation marks and citation omitted). In Kalinowski, for example, 2
this Court concluded that there was insufficient evidence that the down payments of 3
several home purchasers were entrusted to the defendant home builder, reasoning 4
that “at the time [the d]efendant used the deposit money for purposes other than the 5
construction of the [home purchasers’] properties, the deposits already legally 6
belonged to [the d]efendant; he could not be found to have converted the deposits 7
because they were his property—not property of another.” See id. ¶¶ 10, 13, 16, 35 8
(internal quotations marks and citation omitted). This Court noted that there was no 9
evidence of an actual agreement or any conversations between the defendant and 10
purchasers specifying the particular purpose for which the down payments were to 11
be used. See id. ¶¶ 4-5. 12
{10} Here, by contrast, we conclude there was evidence from which the jury could 13
reasonably infer that the $3,630 had been “earmarked to be used” for a particular 14
purpose, see id. ¶¶ 4, 13—ordering a transmission. The jury heard testimony that 15
Defendant told White the truck needed a transmission, then quoted White the cost 16
of a transmission and told White he could order one, and that White gave Defendant 17
a check for “over thirty-six hundred bucks” in response. The jury also heard 18
testimony that White issued the $3,630 check for a replacement transmission itself 19
rather than for both labor and parts, and that this amount did not represent the total 206
amount he would owe Defendant. Based on this testimony, a jury could reasonably 1
infer that White and Defendant shared an understanding that the money had been 2
“earmarked to be used” for the particular purpose of ordering a transmission. 3
{11} In addition, the check that White gave to Defendant stated, in the check’s 4
memo line, “2008 Silver[ado] Transmission,” and Defendant personally deposited 5
this check. The jury could reasonably infer from this evidence that White had 6
specified in writing that the money was earmarked to be used to order a replacement 7
transmission and that Defendant was aware of this purpose when he received and 8
deposited the check. Disregarding all evidence and inferences that support a different 9
result, and indulging all reasonable inferences in the evidence in favor of the verdict, 10
we conclude that the money did not become Defendant’s property upon payment, 11
but rather that the money was “committed or surrendered” to Defendant “with a 12
certain confidence regarding the . . . use[] or disposal of that property.” Archie, 1997- 13
NMCA-058, ¶ 4. Although we recognize that it is possible to interpret the evidence 14
differently, our task is not to second-guess a reasonable interpretation or substitute 15
our own interpretation of the evidence for the jury’s. See State v. Pitner, 2016- 16
NMCA-102, ¶ 6, 385 P.3d 665 (“We do not reweigh the evidence or substitute our 17
judgment for that of the fact[-]finder as long as there is sufficient evidence to support 18
the verdict.” (internal quotation marks and citation omitted)). Accordingly, under 19
our deferential standard of review, the evidence of entrustment is sufficient. 207
B. Fraudulent Intent 1
{12} Defendant also argues there was insufficient evidence of embezzlement 2
because he never possessed the requisite “fraudulent intent,” pointing to his 3
testimony stating as much. We are unpersuaded. 4
{13} “Fraudulent intent is defined as the intent to cheat or deceive and may be 5
inferred by reasonable inferences and circumstantial evidence.” State v. Curry, 6
2002-NMCA-092, ¶ 11, 132 N.M. 602, 52 P.3d 974. “The element of intent is 7
seldom susceptible to direct proof and accordingly may be proved by circumstantial 8
evidence.” State v. Dowling, 2011-NMSC-016, ¶ 22, 150 N.M. 110, 257 P.3d 930 9
(alteration, internal quotation marks, and citation omitted). Intent “must be proved 10
by the reasonable inferences shown by the evidence and the surrounding 11
circumstances. If there are reasonable inferences and sufficient circumstances then 12
the issue of intent becomes a question of fact for the jury.” State v. Ortiz, 1977- 13
NMCA-036, ¶ 9, 90 N.M. 319, 563 P.2d 113. 14
{14} Viewing the evidence in the light most favorable to the verdict, we conclude 15
that the evidence of fraudulent intent is sufficient. A jury could reasonably find that 16
Defendant deprived White of $3,630 with the requisite intent to deceive or cheat. 17
The State presented circumstantial evidence from which the jury could infer 18
Defendant agreed to use the money for a transmission, did not order one despite 19
having over four months to do so, and failed to return the money when asked. The 208 State also presented evidence that Defendant gave White different and inconsistent 1 explanations about the status and location of the transmission—first that the 2 transmission was in his shop and later that he still needed to pick it up. The jury 3 could have reasonably inferred that Defendant was lying to or misleading White, 4 demonstrating his consciousness of guilt. See State v. Faubion, 1998-NMCA-095, 5 ¶ 13, 125 N.M. 670, 964 P.2d 834 (looking to the defendants’ lies and misleading 6 actions as evidence of their consciousness of guilt in determining whether they 7 possessed the requisite intent to embezzle). Finally, when the truck was towed from 8 Defendant’s shop, it was missing parts and its interior had been damaged; the 9 insurance company ultimately declared the truck totaled. A jury could reasonably 10 infer based on the truck’s condition upon recovery that Defendant never intended to 11 complete the work for which he was paid. In light of this evidence, a jury could 12 reasonably infer that Defendant surreptitiously used money deposited from the check 13 for his own purposes. Such an interpretation of the evidence supports a finding that 14 Defendant acted with the requisite fraudulent intent. See Archie, 1997-NMCA-058, 15 ¶ 10 (concluding that evidence of fraudulent intent was sufficient to support the 16 embezzlement conviction of a defendant who surreptitiously treated property that 17 did not belong to him in a manner contrary to the defendant’s promises to the owner). 18 Having concluded there was sufficient evidence to support Defendant’s conviction 19
9
for embezzlement, the district court did not err in denying Defendant’s motion for a 1
directed verdict. 2
II. The District Court Did Not Err by Allowing the Prosecutor to Cross- 3
Examine Defendant on Prior Convictions for Receiving Stolen Property 4
{15} Defendant next argues the district court erred by allowing the State to recross- 5
examine Defendant regarding his previous convictions that were more than ten years 6
old. Defendant contends the district court misapplied Rule 11-609(B) NMRA 7
because the court did not weigh the specific facts and circumstances necessary to 8
determine whether the convictions’ probative value substantially outweighed their 9
prejudicial effect and because the State failed to give written notice of its intent to 10
use those convictions. We are unpersuaded. 11
{16} Before Defendant took the stand the district court, relying on Rule 11-609, 12
ruled that the State would not be allowed to impeach Defendant for his prior 13
convictions of receiving stolen property. The district court instead allowed the State 14
to impeach Defendant with those convictions in response to Defendant’s volunteered 15
statement on redirect related to his prior convictions for stealing. We therefore 16
examine whether the State’s use of the receiving stolen property convictions to 17
impeach Defendant was allowed on that basis. 18
{17} The State contends the impeachment was allowed based on the doctrine of 19
curative admissibility, as well as a district court’s discretion to admit specific 20
instances of conduct on cross-examination where a defendant has opened the door 2110
and the past acts are probative of an issue raised in the defendant’s testimony on 1
direct examination. Defendant responds that he did not open the door by making an 2
unsolicited comment and contends his volunteered statement that he had not been 3
convicted of stealing was accurate because receiving stolen property does not 4
involve the actual theft of property. As we explain, we conclude Defendant has not 5
met his burden of demonstrating that the district court’s ruling constituted an abuse 6
of discretion. 7
{18} “Curative admissibility is a common law evidentiary doctrine that is still 8
recognized by our courts, despite its lack of codification in our rules of evidence. 9
Under [this] doctrine . . ., a party may introduce inadmissible evidence to counteract 10
the prejudice created by their opponent’s earlier introduction of similarly 11
inadmissible evidence.” State v. Gonzales, 2020-NMCA-022, ¶ 12, 461 P.3d 920 12
(citations omitted); see also id. ¶ 13 (recognizing that “courts typically describe the 13
doctrine of curative admissibility as a conferral of discretion on the trial judge rather 14
than the grant of a right to the party” (alteration, internal quotation marks, and 15
citation omitted)). In addition, “parties may generally impeach misleading evidence 16
introduced by their opponents through specific contradiction.” Id. ¶ 12 n.3; see also 17
State v. Hernandez, 1999-NMCA-105, ¶¶ 8, 19-20, 127 N.M. 769, 987 P.2d 1156 18
(concluding that the district court did not abuse its discretion in allowing the state to 19
ask the defendant on cross-examination about a prior domestic violence conviction 2011
after the defendant’s testimony on direct examination implied that the victim had 1
injured herself, reasoning that the state was entitled to introduce evidence to correct 2
the defendant’s misrepresentation); State v. Reed, 2022-NMCA-025, ¶ 34, 510 P.3d 3
1261 (“[T]he admission of evidence and the limits on cross-examination fall within 4
the district court’s sound discretion.”), cert. denied (S-1-SC-39187). 5
{19} We presume that the district court did not abuse its discretion in admitting this 6
evidence. See State v. Campbell, 2007-NMCA-051, ¶ 9, 141 N.M. 543, 157 P.3d 7
722 (stating that the district court abuses its discretion when its ruling is “obviously 8
erroneous, arbitrary and unwarranted” or “clearly against the logic and effect of the 9
facts and circumstances before the court” (internal quotation marks and citation 10
omitted)); State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 11
(“There is a presumption of correctness in the district court’s rulings. Accordingly, 12
it is [the d]efendant’s burden on appeal to demonstrate any claimed error below.” 13
(alterations, internal quotation marks, and citation omitted)). 14
{20} Defendant’s arguments focus on whether the district court misapplied Rule 15
11-609, which was not the basis for the court’s decision to allow the State to recross- 16
examine Defendant regarding his prior receiving stolen property convictions. 17
Although Defendant asserts his volunteered statement—that his convictions for 18
receiving stolen property were not for “stealing”—was not misleading to the jury, 19
we cannot say it was clearly against the logic and effect of the facts and 2012
circumstances for the district court to determine that the statement would have, in 1
isolation, been misleading. See Hernandez, 1999-NMCA-105, ¶¶ 19-20; see also 2
NMSA 1978, § 30-16-11(A) (2006) (providing in relevant part that “[r]eceiving 3
stolen property means intentionally to receive, retain or dispose of stolen property 4
knowing that it has been stolen” (emphases added)). “[W]here it is evident that there 5
existed reasons for and against the ruling, we may indulge in the usual appellate 6
presumptions to affirm the [district] court.” State v. Trejo, 1991-NMCA-143, ¶ 7, 7
113 N.M. 342, 825 P.2d 1252. We therefore conclude that Defendant has not carried 8
his burden of demonstrating that the district court’s ruling constituted an abuse of 9
discretion. 10
III. The District Court Did Not Err by Allowing the State to Amend the Date 11
of the Charged Offense 12
{21} Defendant next argues the district court erred by permitting the State to amend 13
the complaint and allowing the jury instruction for embezzlement to include a range 14
of dates rather than a specific date. 15
{22} With regard to the amendment to the complaint, under Rule 5-204(C) NMRA, 16
the district court “may at any time allow the indictment or information to be amended 17
in respect to any variance to conform to the evidence.” “A variance is not fatal unless 18
the accused cannot reasonably anticipate from the indictment what the nature of the 19
proof against him will be.” State v. Marquez, 1998-NMCA-010, ¶ 20, 124 N.M. 409, 20
951 P.2d 1070. “Under Rule 5-204(C), if the substantial rights of a defendant are 2113
prejudiced by a variance, then such a variance may provide the grounds for an 1
acquittal.” State v. Branch, 2010-NMSC-042, ¶ 20, 148 N.M. 601, 241 P.3d 602, 2
overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 3
P.3d 110. We review a district court’s interpretation and application of Rule 5-204 4
de novo. State v. Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d 852. 5
{23} Defendant contends the amendment to the complaint violated his substantive 6
rights and prejudiced his defense. We are not persuaded by these arguments. 7
{24} Most fundamentally, the original complaint alleging embezzlement did not 8
provide a precise date but rather generally alleged that the offense occurred “on or 9
about December 12, 2019.” Defendant was thus on notice from the outset that the 10
State’s witnesses could not say precisely on what date the alleged embezzlement 11
occurred. See State v. Stevens, 2014-NMSC-011, ¶ 54, 323 P.3d 901 (stating that, 12
“[m]ost fundamentally, the information never alleged precise dates of the multiple 13
crimes charged . . . [but rather] it generally alleged that all of the offenses occurred 14
‘on or about November 12, 2007’” and therefore the defendant and her counsel were 15
on notice that the state’s witness could not say precisely when the events occurred). 16
Moreover, the complaint alleging embezzlement provided sufficient notice of the 17
charge such that Defendant could “reasonably anticipate” that the State’s evidence 18
would relate to Defendant’s failure to use the money to repair the truck, which was 19
in Defendant’s shop from mid-December 2019 to May 1, 2020. See Marquez, 1998- 2014
NMCA-010, ¶ 20; see also Stevens, 2014-NMSC-011, ¶ 50 (“A criminal indictment 1
or information need not contain exacting detail as long as the defendant is given 2
sufficient notice of the charges.”). In addition, the State’s proposed jury instruction 3
for embezzlement, submitted approximately one week before trial, listed a six-month 4
period, providing Defendant additional notice that the nature of proof against him 5
would not be limited to a specific date. And although Defendant asserts that he 6
suffered prejudice because he “defended himself on the alleged embezzlement 7
occurring on one particular date [and] not a range of dates over a five[-]month 8
period,” he provides no citation to the record supporting this assertion, and “[t]he 9
mere assertion of prejudice, without more, is insufficient to establish prejudicial 10
error warranting reversal of a conviction.” Marquez, 1998-NMCA-010, ¶ 20 11
(internal quotation marks and citation omitted). Accordingly, the district court did 12
not err by permitting the State to amend the complaint. 13
{25} Defendant also argues that the district court erred by allowing the jury 14
instruction for embezzlement to include a range of dates rather than a specific date, 15
claiming that that jury was “utterly confused” by the instruction. This argument, 16
however, is undeveloped, and we decline to consider it further. See State v. Guerra, 17
2012-NMSC-014, ¶ 21, 278 P.3d 1031 (stating that appellate courts are under no 18
obligation to review unclear or undeveloped arguments). 1915
IV. Defendant’s Additional Arguments Are Without Merit 1
{26} During closing argument defense counsel told the jury that the district court 2
had “dismissed” the criminal damage to property charge. Following an objection by 3
the State, a bench conference ensued, and the district court informed defense counsel 4
that it was inappropriate for him to have informed the jury of a previous ruling by 5
the court. Upon the State’s request for a limiting instruction, the district court told 6
the jury to disregard defense counsel’s statement relating to the court’s previous 7
ruling and stated that it should not consider “Count II” or the reasons the jury was 8
not deliberating on that count. 9
{27} Defendant argues the district court was required to inform the jury that it had 10
dismissed the criminal damage to property charge, and that the court erred by 11
instructing the jury to disregard defense counsel’s comments relating to the court’s 12
dismissal of that charge. We also understand Defendant to argue that the district 13
court committed fundamental error by failing to adequately instruct the jury on the 14
limited use of certain evidence. 15
{28} To the extent Defendant asserts the district court was required to inform the 16
jury that the criminal damage to property charge had been dismissed pursuant to UJI 17
14-5042 NMRA, UJI 14-5042 does not support this assertion, and Defendant fails 18
to adequately develop an argument as to how it does. See State v. Fuentes, 2010- 19
NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that we will “not review 2016
unclear or undeveloped arguments [that] require us to guess at what [a] part[y’s] 1
arguments might be”). We therefore decline to consider this argument further. 2
Insofar as Defendant argues the district court erred by instructing the jury to 3
disregard defense counsel’s comments relating to the court’s dismissal of the 4
criminal damages to property charge, Defendant also fails to adequately develop this 5
argument, or cite authority in support of this issue, and we likewise decline to 6
consider it further. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 7
(“[A]ppellate courts will not consider an issue if no authority is cited in support of 8
the issue and that, given no cited authority, we assume no such authority exists.”). 9
{29} Finally, we understand Defendant to argue that the district court committed 10
fundamental error by failing to instruct the jury that certain exhibits which Defendant 11
contends were admitted to prove criminal damage to property should not be 12
considered in deciding the embezzlement charge. We disagree. 13
{30} As an initial matter, the exhibits at issue were not admitted for a limited 14
purpose pursuant to Rule 11-105 NMRA. Moreover, the district court could have, 15
in its discretion, determined that these exhibits—which indicated the truck was 16
missing parts and damaged—were relevant to the embezzlement charge, including 17
whether Defendant had intended to repair the truck or instead convert the money to 18
his own use. See State v. Aguayo, 1992-NMCA-044, ¶ 17, 114 N.M. 124, 835 P.2d 19
840 (“Admission of evidence is within the sound discretion of the [district] court.”). 2017
But even if we were to assume these exhibits had been admitted for a limited purpose 1
and the district court erred by failing to sua sponte give such an instruction, 2
Defendant has not developed an argument addressing the considerations relevant to 3
a fundamental error analysis. See State v. Haskins, 2008-NMCA-086, ¶ 26, 144 N.M. 4
287, 186 P.3d 916 (“The fundamental error doctrine is applied to review unpreserved 5
error when the court’s conscience is shocked at a miscarriage of justice, such as 6
when a defendant is indisputably innocent or when a mistake in the process makes a 7
conviction fundamentally unfair notwithstanding the apparent guilt of the accused.” 8
(alteration, internal quotation marks, and citation omitted)). We therefore decline to 9
consider this argument further. See State v. Dickert, 2012-NMCA-004, ¶ 35, 268 10
P.3d 515 (declining to review for fundamental error where the argument was 11
undeveloped). 12
CONCLUSION 13
{31} For the foregoing reasons, we affirm. 14
{32} IT IS SO ORDERED. 15
____________________________ 16
KRISTINA BOGARDUS, Judge 1718 WE CONCUR: 1 _________________________________ 2 MEGAN P. DUFFY, Judge 3 _________________________________ 4 SHAMMARA H. HENDERSON, Judge 5
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Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
_ Court of Appeals of New Mexico
Opinion Number: Filed 10/27/2022 9:28 AM
Filing Date: October 27, 2022 Al. ne
Mark ——
No. A-1-CA-39734
STATE OF NEW MEXICO,
Plaintiff-A ppellee,
V.
THOMAS C. FERGUSON,
Defendant-A ppellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Matthew E. Chandler, District J udge
Hector H. Balderas, Attomey General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attomey General
Albuquerque, NM
for Appellee
Enic D. Dixon, Attomey and Counselor At Law, P.A.
Enc D. Dixon
Portales, NM
for Appellant
OPINION 1
BOGARDUS, Judge. 2
{1} Defendant Thomas Ferguson appeals his conviction of embezzlement, 3
contrary to NMSA 1978, Section 30-16-8 (2007). Defendant argues the district court 4
erred by (1) denying his motion for a directed verdict, (2) allowing the State to cross- 5
examine him regarding prior convictions for receiving stolen property, (3) permitting 6
the State to amend the date of the charged offense, and (4) instructing the jury to 7
disregard defense counsel’s comments during closing argument relating to the 8
court’s dismissal of a separate charge. We affirm. 9
BACKGROUND 10
{2} On December 11, 2019, Joseph White brought a 2008 Chevrolet pick-up truck 11
(the truck) into an automotive shop operated by Defendant for repairs. Defendant 12
told White there was a problem with the transmission, but that he could order one, 13
and White gave Defendant a check for $3,630. The check’s memo line stated, “2008 14
Silver[ado] Transmission.” Defendant cashed the check. Over the next several 15
months White regularly checked with Defendant about the truck, and Defendant 16
gave White inconsistent explanations about the transmission’s status. On May 1, 17
2020, White had the truck towed from Defendant’s shop. The truck had been 18
damaged and was missing parts. The State charged Defendant with embezzlement 19
and criminal damage to property. 20
2
{3} At a jury trial, the district court directed a verdict against the State on the 1
criminal damage to property charge; the jury returned a guilty verdict on the 2
embezzlement charge. Defendant appeals. 3
I. The District Court Did Not Err in Denying Defendant’s Motion for a 4
Directed Verdict 5
{4} Defendant argues the district court erred as a matter of law in denying his 6
motion for a directed verdict, contending there was insufficient evidence to prove 7
embezzlement. “We review denials of directed verdicts by asking whether sufficient 8
evidence was adduced to support the underlying charge.” State v. Johnson, 2010- 9
NMSC-016, ¶ 57, 148 N.M. 50, 229 P.3d 523 (internal quotation marks and citation 10
omitted). “Questions of sufficiency that require us to engage in statutory 11
interpretation present a question of law which is reviewed de novo on appeal.” State 12
v. Kalinowski, 2020-NMCA-018, ¶ 7, 460 P.3d 79 (alteration, internal quotation 13
marks, and citation omitted). “After reviewing the statutory standard, we apply a 14
substantial evidence standard to review the sufficiency of the evidence at trial.” State 15
v. Chavez, 2009-NMSC-035, ¶ 11, 146 N.M. 434, 211 P.3d 891. 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 of guilty beyond a 18
reasonable doubt with respect to every element essential to a conviction.” State v. 19
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and 20
citation omitted). “Substantial evidence is relevant evidence that a reasonable mind 21
3
might accept as adequate to support a conclusion.” Id. ¶ 53 (alteration, internal 1
quotation marks, and citation omitted). When reviewing for substantial evidence, 2
appellate courts “view[] the evidence in the light most favorable to the guilty verdict, 3
indulging all reasonable inferences and resolving all conflicts in the evidence in 4
favor of the verdict.” Id. ¶ 52 (internal quotation marks and citation omitted). We 5
also disregard all evidence and inferences that support a different result. See State v. 6
Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We measure the 7
sufficiency of the evidence against the jury instructions given, which become the 8
law of the case. State v. Jackson, 2018-NMCA-066, ¶ 22, 429 P.3d 674. 9
{6} Here, in relevant part, the jury was instructed that to find Defendant guilty of 10
embezzlement the State had to prove beyond a reasonable doubt that Defendant (1) 11
was entrusted with $3,630, (2) converted this money to his own use, and (3) at the 12
time Defendant converted the money, he fraudulently intended to deprive the owner 13
of the owner’s property. See UJI 14-1641 NMRA. Defendant’s arguments address 14
the elements of entrustment and fraudulent intent. 15
A. Entrustment 16
{7} Defendant argues there was no entrustment, contending that once he received 17
the check on December 12, 2019, the money became his personal property. As a 18
result, Defendant asserts he could not have converted the money because the money 19
was not another’s property, as required to sustain an embezzlement conviction. 20
4
Defendant also asserts that when “theft-temporary taking involves an advance 1
payment of money, the [S]tate must establish a fiduciary relationship” and points 2
out that a mechanic is not a fiduciary. We are unpersuaded. 3
{8} “While some jurisdictions may require a special fiduciary relationship, such 4
as employment or agency, as an element of the crime [of embezzlement], New 5
Mexico does not.” State v. Archie, 1997-NMCA-058, ¶ 3, 123 N.M. 503, 943 P.2d 6
537. New Mexico instead applies the common meaning of “[e]ntrustment,” see State 7
v. Moss, 1971-NMCA-117, ¶ 6, 83 N.M. 42, 487 P.2d 1347, which “occurs when 8
property is committed or surrendered to another with a certain confidence regarding 9
the care, use, or disposal of that property.” Archie, 1997-NMCA-058, ¶ 4. However, 10
“[o]ne cannot be guilty of embezzlement if he converts his own property; the 11
property converted must be that of another.” Kalinowski, 2020-NMCA-018, ¶ 10 12
(internal quotation marks and citation omitted). We must therefore determine 13
whether the check for $3,630 was White’s property, such that Defendant was 14
“entrusted” with it, or whether that money became Defendant’s property upon 15
payment, precluding a finding of entrustment. 16
{9} In the context of advanced payments to a building contractor, this Court has 17
recognized that “[a] building contractor who receives from the landowner an 18
advance payment on the contract and who thereafter spends the money for his own 19
purposes and does not fulfill the contract, is not guilty of embezzlement, unless the 20
5
money is earmarked to be used only for a construction purpose.” Id. ¶ 13 (emphases 1
added) (internal quotation marks and citation omitted). In Kalinowski, for example, 2
this Court concluded that there was insufficient evidence that the down payments of 3
several home purchasers were entrusted to the defendant home builder, reasoning 4
that “at the time [the d]efendant used the deposit money for purposes other than the 5
construction of the [home purchasers’] properties, the deposits already legally 6
belonged to [the d]efendant; he could not be found to have converted the deposits 7
because they were his property—not property of another.” See id. ¶¶ 10, 13, 16, 35 8
(internal quotations marks and citation omitted). This Court noted that there was no 9
evidence of an actual agreement or any conversations between the defendant and 10
purchasers specifying the particular purpose for which the down payments were to 11
be used. See id. ¶¶ 4-5. 12
{10} Here, by contrast, we conclude there was evidence from which the jury could 13
reasonably infer that the $3,630 had been “earmarked to be used” for a particular 14
purpose, see id. ¶¶ 4, 13—ordering a transmission. The jury heard testimony that 15
Defendant told White the truck needed a transmission, then quoted White the cost 16
of a transmission and told White he could order one, and that White gave Defendant 17
a check for “over thirty-six hundred bucks” in response. The jury also heard 18
testimony that White issued the $3,630 check for a replacement transmission itself 19
rather than for both labor and parts, and that this amount did not represent the total 20
6
amount he would owe Defendant. Based on this testimony, a jury could reasonably 1
infer that White and Defendant shared an understanding that the money had been 2
“earmarked to be used” for the particular purpose of ordering a transmission. 3
{11} In addition, the check that White gave to Defendant stated, in the check’s 4
memo line, “2008 Silver[ado] Transmission,” and Defendant personally deposited 5
this check. The jury could reasonably infer from this evidence that White had 6
specified in writing that the money was earmarked to be used to order a replacement 7
transmission and that Defendant was aware of this purpose when he received and 8
deposited the check. Disregarding all evidence and inferences that support a different 9
result, and indulging all reasonable inferences in the evidence in favor of the verdict, 10
we conclude that the money did not become Defendant’s property upon payment, 11
but rather that the money was “committed or surrendered” to Defendant “with a 12
certain confidence regarding the . . . use[] or disposal of that property.” Archie, 1997- 13
NMCA-058, ¶ 4. Although we recognize that it is possible to interpret the evidence 14
differently, our task is not to second-guess a reasonable interpretation or substitute 15
our own interpretation of the evidence for the jury’s. See State v. Pitner, 2016- 16
NMCA-102, ¶ 6, 385 P.3d 665 (“We do not reweigh the evidence or substitute our 17
judgment for that of the fact[-]finder as long as there is sufficient evidence to support 18
the verdict.” (internal quotation marks and citation omitted)). Accordingly, under 19
our deferential standard of review, the evidence of entrustment is sufficient. 20
7
B. Fraudulent Intent 1
{12} Defendant also argues there was insufficient evidence of embezzlement 2
because he never possessed the requisite “fraudulent intent,” pointing to his 3
testimony stating as much. We are unpersuaded. 4
{13} “Fraudulent intent is defined as the intent to cheat or deceive and may be 5
inferred by reasonable inferences and circumstantial evidence.” State v. Curry, 6
2002-NMCA-092, ¶ 11, 132 N.M. 602, 52 P.3d 974. “The element of intent is 7
seldom susceptible to direct proof and accordingly may be proved by circumstantial 8
evidence.” State v. Dowling, 2011-NMSC-016, ¶ 22, 150 N.M. 110, 257 P.3d 930 9
(alteration, internal quotation marks, and citation omitted). Intent “must be proved 10
by the reasonable inferences shown by the evidence and the surrounding 11
circumstances. If there are reasonable inferences and sufficient circumstances then 12
the issue of intent becomes a question of fact for the jury.” State v. Ortiz, 1977- 13
NMCA-036, ¶ 9, 90 N.M. 319, 563 P.2d 113. 14
{14} Viewing the evidence in the light most favorable to the verdict, we conclude 15
that the evidence of fraudulent intent is sufficient. A jury could reasonably find that 16
Defendant deprived White of $3,630 with the requisite intent to deceive or cheat. 17
The State presented circumstantial evidence from which the jury could infer 18
Defendant agreed to use the money for a transmission, did not order one despite 19
having over four months to do so, and failed to return the money when asked. The 20
8
State also presented evidence that Defendant gave White different and inconsistent 1
explanations about the status and location of the transmission—first that the 2
transmission was in his shop and later that he still needed to pick it up. The jury 3
could have reasonably inferred that Defendant was lying to or misleading White, 4
demonstrating his consciousness of guilt. See State v. Faubion, 1998-NMCA-095, 5
¶ 13, 125 N.M. 670, 964 P.2d 834 (looking to the defendants’ lies and misleading 6
actions as evidence of their consciousness of guilt in determining whether they 7
possessed the requisite intent to embezzle). Finally, when the truck was towed from 8
Defendant’s shop, it was missing parts and its interior had been damaged; the 9
insurance company ultimately declared the truck totaled. A jury could reasonably 10
infer based on the truck’s condition upon recovery that Defendant never intended to 11
complete the work for which he was paid. In light of this evidence, a jury could 12
reasonably infer that Defendant surreptitiously used money deposited from the check 13
for his own purposes. Such an interpretation of the evidence supports a finding that 14
Defendant acted with the requisite fraudulent intent. See Archie, 1997-NMCA-058, 15
¶ 10 (concluding that evidence of fraudulent intent was sufficient to support the 16
embezzlement conviction of a defendant who surreptitiously treated property that 17
did not belong to him in a manner contrary to the defendant’s promises to the owner). 18
Having concluded there was sufficient evidence to support Defendant’s conviction 19
9
for embezzlement, the district court did not err in denying Defendant’s motion for a 1
directed verdict. 2
II. The District Court Did Not Err by Allowing the Prosecutor to Cross- 3
Examine Defendant on Prior Convictions for Receiving Stolen Property 4
{15} Defendant next argues the district court erred by allowing the State to recross- 5
examine Defendant regarding his previous convictions that were more than ten years 6
old. Defendant contends the district court misapplied Rule 11-609(B) NMRA 7
because the court did not weigh the specific facts and circumstances necessary to 8
determine whether the convictions’ probative value substantially outweighed their 9
prejudicial effect and because the State failed to give written notice of its intent to 10
use those convictions. We are unpersuaded. 11
{16} Before Defendant took the stand the district court, relying on Rule 11-609, 12
ruled that the State would not be allowed to impeach Defendant for his prior 13
convictions of receiving stolen property. The district court instead allowed the State 14
to impeach Defendant with those convictions in response to Defendant’s volunteered 15
statement on redirect related to his prior convictions for stealing. We therefore 16
examine whether the State’s use of the receiving stolen property convictions to 17
impeach Defendant was allowed on that basis. 18
{17} The State contends the impeachment was allowed based on the doctrine of 19
curative admissibility, as well as a district court’s discretion to admit specific 20
instances of conduct on cross-examination where a defendant has opened the door 21
10
and the past acts are probative of an issue raised in the defendant’s testimony on 1
direct examination. Defendant responds that he did not open the door by making an 2
unsolicited comment and contends his volunteered statement that he had not been 3
convicted of stealing was accurate because receiving stolen property does not 4
involve the actual theft of property. As we explain, we conclude Defendant has not 5
met his burden of demonstrating that the district court’s ruling constituted an abuse 6
of discretion. 7
{18} “Curative admissibility is a common law evidentiary doctrine that is still 8
recognized by our courts, despite its lack of codification in our rules of evidence. 9
Under [this] doctrine . . ., a party may introduce inadmissible evidence to counteract 10
the prejudice created by their opponent’s earlier introduction of similarly 11
inadmissible evidence.” State v. Gonzales, 2020-NMCA-022, ¶ 12, 461 P.3d 920 12
(citations omitted); see also id. ¶ 13 (recognizing that “courts typically describe the 13
doctrine of curative admissibility as a conferral of discretion on the trial judge rather 14
than the grant of a right to the party” (alteration, internal quotation marks, and 15
citation omitted)). In addition, “parties may generally impeach misleading evidence 16
introduced by their opponents through specific contradiction.” Id. ¶ 12 n.3; see also 17
State v. Hernandez, 1999-NMCA-105, ¶¶ 8, 19-20, 127 N.M. 769, 987 P.2d 1156 18
(concluding that the district court did not abuse its discretion in allowing the state to 19
ask the defendant on cross-examination about a prior domestic violence conviction 20
11
after the defendant’s testimony on direct examination implied that the victim had 1
injured herself, reasoning that the state was entitled to introduce evidence to correct 2
the defendant’s misrepresentation); State v. Reed, 2022-NMCA-025, ¶ 34, 510 P.3d 3
1261 (“[T]he admission of evidence and the limits on cross-examination fall within 4
the district court’s sound discretion.”), cert. denied (S-1-SC-39187). 5
{19} We presume that the district court did not abuse its discretion in admitting this 6
evidence. See State v. Campbell, 2007-NMCA-051, ¶ 9, 141 N.M. 543, 157 P.3d 7
722 (stating that the district court abuses its discretion when its ruling is “obviously 8
erroneous, arbitrary and unwarranted” or “clearly against the logic and effect of the 9
facts and circumstances before the court” (internal quotation marks and citation 10
omitted)); State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 11
(“There is a presumption of correctness in the district court’s rulings. Accordingly, 12
it is [the d]efendant’s burden on appeal to demonstrate any claimed error below.” 13
(alterations, internal quotation marks, and citation omitted)). 14
{20} Defendant’s arguments focus on whether the district court misapplied Rule 15
11-609, which was not the basis for the court’s decision to allow the State to recross- 16
examine Defendant regarding his prior receiving stolen property convictions. 17
Although Defendant asserts his volunteered statement—that his convictions for 18
receiving stolen property were not for “stealing”—was not misleading to the jury, 19
we cannot say it was clearly against the logic and effect of the facts and 20
12
circumstances for the district court to determine that the statement would have, in 1
isolation, been misleading. See Hernandez, 1999-NMCA-105, ¶¶ 19-20; see also 2
NMSA 1978, § 30-16-11(A) (2006) (providing in relevant part that “[r]eceiving 3
stolen property means intentionally to receive, retain or dispose of stolen property 4
knowing that it has been stolen” (emphases added)). “[W]here it is evident that there 5
existed reasons for and against the ruling, we may indulge in the usual appellate 6
presumptions to affirm the [district] court.” State v. Trejo, 1991-NMCA-143, ¶ 7, 7
113 N.M. 342, 825 P.2d 1252. We therefore conclude that Defendant has not carried 8
his burden of demonstrating that the district court’s ruling constituted an abuse of 9
discretion. 10
III. The District Court Did Not Err by Allowing the State to Amend the Date 11
of the Charged Offense 12
{21} Defendant next argues the district court erred by permitting the State to amend 13
the complaint and allowing the jury instruction for embezzlement to include a range 14
of dates rather than a specific date. 15
{22} With regard to the amendment to the complaint, under Rule 5-204(C) NMRA, 16
the district court “may at any time allow the indictment or information to be amended 17
in respect to any variance to conform to the evidence.” “A variance is not fatal unless 18
the accused cannot reasonably anticipate from the indictment what the nature of the 19
proof against him will be.” State v. Marquez, 1998-NMCA-010, ¶ 20, 124 N.M. 409, 20
951 P.2d 1070. “Under Rule 5-204(C), if the substantial rights of a defendant are 21
13
prejudiced by a variance, then such a variance may provide the grounds for an 1
acquittal.” State v. Branch, 2010-NMSC-042, ¶ 20, 148 N.M. 601, 241 P.3d 602, 2
overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 3
P.3d 110. We review a district court’s interpretation and application of Rule 5-204 4
de novo. State v. Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d 852. 5
{23} Defendant contends the amendment to the complaint violated his substantive 6
rights and prejudiced his defense. We are not persuaded by these arguments. 7
{24} Most fundamentally, the original complaint alleging embezzlement did not 8
provide a precise date but rather generally alleged that the offense occurred “on or 9
about December 12, 2019.” Defendant was thus on notice from the outset that the 10
State’s witnesses could not say precisely on what date the alleged embezzlement 11
occurred. See State v. Stevens, 2014-NMSC-011, ¶ 54, 323 P.3d 901 (stating that, 12
“[m]ost fundamentally, the information never alleged precise dates of the multiple 13
crimes charged . . . [but rather] it generally alleged that all of the offenses occurred 14
‘on or about November 12, 2007’” and therefore the defendant and her counsel were 15
on notice that the state’s witness could not say precisely when the events occurred). 16
Moreover, the complaint alleging embezzlement provided sufficient notice of the 17
charge such that Defendant could “reasonably anticipate” that the State’s evidence 18
would relate to Defendant’s failure to use the money to repair the truck, which was 19
in Defendant’s shop from mid-December 2019 to May 1, 2020. See Marquez, 1998- 20
14
NMCA-010, ¶ 20; see also Stevens, 2014-NMSC-011, ¶ 50 (“A criminal indictment 1
or information need not contain exacting detail as long as the defendant is given 2
sufficient notice of the charges.”). In addition, the State’s proposed jury instruction 3
for embezzlement, submitted approximately one week before trial, listed a six-month 4
period, providing Defendant additional notice that the nature of proof against him 5
would not be limited to a specific date. And although Defendant asserts that he 6
suffered prejudice because he “defended himself on the alleged embezzlement 7
occurring on one particular date [and] not a range of dates over a five[-]month 8
period,” he provides no citation to the record supporting this assertion, and “[t]he 9
mere assertion of prejudice, without more, is insufficient to establish prejudicial 10
error warranting reversal of a conviction.” Marquez, 1998-NMCA-010, ¶ 20 11
(internal quotation marks and citation omitted). Accordingly, the district court did 12
not err by permitting the State to amend the complaint. 13
{25} Defendant also argues that the district court erred by allowing the jury 14
instruction for embezzlement to include a range of dates rather than a specific date, 15
claiming that that jury was “utterly confused” by the instruction. This argument, 16
however, is undeveloped, and we decline to consider it further. See State v. Guerra, 17
2012-NMSC-014, ¶ 21, 278 P.3d 1031 (stating that appellate courts are under no 18
obligation to review unclear or undeveloped arguments). 19
15
IV. Defendant’s Additional Arguments Are Without Merit 1
{26} During closing argument defense counsel told the jury that the district court 2
had “dismissed” the criminal damage to property charge. Following an objection by 3
the State, a bench conference ensued, and the district court informed defense counsel 4
that it was inappropriate for him to have informed the jury of a previous ruling by 5
the court. Upon the State’s request for a limiting instruction, the district court told 6
the jury to disregard defense counsel’s statement relating to the court’s previous 7
ruling and stated that it should not consider “Count II” or the reasons the jury was 8
not deliberating on that count. 9
{27} Defendant argues the district court was required to inform the jury that it had 10
dismissed the criminal damage to property charge, and that the court erred by 11
instructing the jury to disregard defense counsel’s comments relating to the court’s 12
dismissal of that charge. We also understand Defendant to argue that the district 13
court committed fundamental error by failing to adequately instruct the jury on the 14
limited use of certain evidence. 15
{28} To the extent Defendant asserts the district court was required to inform the 16
jury that the criminal damage to property charge had been dismissed pursuant to UJI 17
14-5042 NMRA, UJI 14-5042 does not support this assertion, and Defendant fails 18
to adequately develop an argument as to how it does. See State v. Fuentes, 2010- 19
NMCA-027, ¶ 29, 147 N.M. 761, 228 P.3d 1181 (noting that we will “not review 20
16
unclear or undeveloped arguments [that] require us to guess at what [a] part[y’s] 1
arguments might be”). We therefore decline to consider this argument further. 2
Insofar as Defendant argues the district court erred by instructing the jury to 3
disregard defense counsel’s comments relating to the court’s dismissal of the 4
criminal damages to property charge, Defendant also fails to adequately develop this 5
argument, or cite authority in support of this issue, and we likewise decline to 6
consider it further. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 7
(“[A]ppellate courts will not consider an issue if no authority is cited in support of 8
the issue and that, given no cited authority, we assume no such authority exists.”). 9
{29} Finally, we understand Defendant to argue that the district court committed 10
fundamental error by failing to instruct the jury that certain exhibits which Defendant 11
contends were admitted to prove criminal damage to property should not be 12
considered in deciding the embezzlement charge. We disagree. 13
{30} As an initial matter, the exhibits at issue were not admitted for a limited 14
purpose pursuant to Rule 11-105 NMRA. Moreover, the district court could have, 15
in its discretion, determined that these exhibits—which indicated the truck was 16
missing parts and damaged—were relevant to the embezzlement charge, including 17
whether Defendant had intended to repair the truck or instead convert the money to 18
his own use. See State v. Aguayo, 1992-NMCA-044, ¶ 17, 114 N.M. 124, 835 P.2d 19
840 (“Admission of evidence is within the sound discretion of the [district] court.”). 20
17
But even if we were to assume these exhibits had been admitted for a limited purpose 1
and the district court erred by failing to sua sponte give such an instruction, 2
Defendant has not developed an argument addressing the considerations relevant to 3
a fundamental error analysis. See State v. Haskins, 2008-NMCA-086, ¶ 26, 144 N.M. 4
287, 186 P.3d 916 (“The fundamental error doctrine is applied to review unpreserved 5
error when the court’s conscience is shocked at a miscarriage of justice, such as 6
when a defendant is indisputably innocent or when a mistake in the process makes a 7
conviction fundamentally unfair notwithstanding the apparent guilt of the accused.” 8
(alteration, internal quotation marks, and citation omitted)). We therefore decline to 9
consider this argument further. See State v. Dickert, 2012-NMCA-004, ¶ 35, 268 10
P.3d 515 (declining to review for fundamental error where the argument was 11
undeveloped). 12
CONCLUSION 13
{31} For the foregoing reasons, we affirm. 14
{32} IT IS SO ORDERED. 15
____________________________ 16
KRISTINA BOGARDUS, Judge 17
1
WE CONCUR:
Megan P Duffy
MEGAN P. DUFFY, Judge
SHAMMARA H. HENDERSON, Judge
18
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