State v. Elawar ( 2010 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fourth-
3 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
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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 fourth-
10 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.
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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
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