State v. Johnson ( 2009 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 29,359
10 MELISSA JOHNSON,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Allison H. Jaramillo, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
1 Defendant was convicted of embezzlement over $500. We proposed to
2 affirm in a calendar notice, and Defendant responded with a memorandum in
3 opposition.
2
1 We have considered Defendant’s arguments, but we are not persuaded that our
2 proposed disposition is incorrect. We therefore affirm.
3 Defendant was originally charged with embezzlement over $2500, but the
4 district court directed a verdict as to that amount. Defendant was convicted of the
5 lesser included offense of embezzlement over $500. Defendant continues to claim
6 that the evidence was insufficient to support her conviction. In our calendar notice,
7 we pointed out that evidence was presented that three different customers had paid
8 in cash for windshield replacements. The State relied on testimony from those
9 customers, as well as testimony from a manager that the computer records showed
10 a number of invoices had been voided and/or cancelled and Defendant handled the
11 sales in connection with most of those invoices. In addition, the State relied on
12 evidence regarding missing inventory, and a surveillance tape showing one
13 transaction between a customer and Defendant, and other actions by Defendant that
14 the manager believed were suspicious.
15 As stated in our calendar notice, embezzlement occurs when a person
16 converts for their own use something of value that has been entrusted to that
17 person, and does so with fraudulent intent to deprive the owner of the thing of
18 value. See NMSA 1978, § 30-16-8 (2007). The elements of the crime can be
19 established by both direct or circumstantial evidence. See State v. Kent, 2006-
3
1 NMCA-134, ¶10, 140 N.M. 606, 145 P.3d 86. Here, there was sufficient evidence
2 to show that Defendant embezzled over $500 while working for her employer.
3 Athough Defendant points to conflicting evidence and inferences in support of her
4 argument that there was insufficient evidence to support her conviction, we view
5 the evidence in the light most favorable to the conviction, and we resolve all
6 conflicts and indulge all reasonable inferences in favor of the conviction. See
7 State v. Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994).
8 Defendant continues to argue that the district court erroneously admitted
9 other invoices that were not supported by testimony from customers, including a
10 number of invoices for windshield chip repair and two invoices for windshield
11 repair. [MIO 8-9] Defendant claims that the volume of evidence impermissibly
12 admitted by the district court did not amount to harmless error. Defendant argues
13 that the evidence was irrelevant, prejudicial, and caused the jury to infer that
14 Defendant was guilty of embezzlement with respect to the additional invoices.
15 Defendant states that, “[t]his created the appearance that the State had much more
16 evidence than it really did.” [MIO 8]
17 As discussed in our calendar notice, the additional invoices were admitted
18 before the district court directed a verdict on the charge of embezzlement over
19 $2500. We will not reverse a ruling on admission of evidence unless it is clear that
4
1 the district court abused its discretion. See State v. Sarracino, 1998-NMSC-022, ¶
2 20, 125 N.M. 511, 964 P.2d 72. In addition, admission of the evidence is harmless
3 if there is no reasonable possibility that the evidence might have contributed to
4 Defendant’s conviction. See State v. McClennen, 2008-NMCA-130, ¶ 13, 144
5 N.M. 878, 192 P.3d 1255. As previously discussed in our calendar notice,
6 application of the three-part test in McClennen demonstrates that admission of
7 additional invoices was harmless because: (1) there was sufficient evidence to
8 support Defendant’s conviction without reliance on the additional invoices; (2)
9 there was much more evidence in support of the three occurrences of
10 embezzlement totaling over $500 in comparison with the additional invoices that
11 might have been used to support additional embezzlement charges, and therefore,
12 the evidence of the additional invoices was so minuscule that it could not have
13 contributed to Defendant’s conviction; and (3) the conflicting evidence presented
14 by Defendant was not sufficient to discredit the State’s evidence in support of the
15 embezzlement charge over $500. Id.16 For the reasons discussed above and in our calendar notice, we affirm
17 Defendant’s conviction.
18 IT IS SO ORDERED.
5
1
2 MICHAEL E. VIGIL, Judge
3 WE CONCUR:
4
5 JONATHAN B. SUTIN, Judge
6
7 ROBERT E. ROBLES, Judge
6