State v. Cruz

Certiorari Granted, January 25, 2010, No. 32,130
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-011Filing Date: October 27, 2009
Docket No. 27,292
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DEBBIE CRUZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Robert A. Aragon, District Judge
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
FRY, Chief Judge.
{1} Defendant appeals from a conditional discharge order following jury convictions for
four counts of issuing a worthless check over $25. See NMSA 1978, § 30-36-4 (1963). She
initially raised four issues on appeal and added a fifth issue regarding ineffective assistance
of counsel in her reply brief. We discuss Defendant’s claims of error as to lack of
jurisdiction and improper venue and affirm on those issues. However, we reverse the
1
convictions on the worthless check charges because the evidence was insufficient to prove
all of the elements necessary under Section 30-36-4. Based upon our decision to reverse,
we do not address Defendant’s remaining issues.
BACKGROUND
{2} Defendant was the president of DGM Construction, Inc. (DGM), a construction
corporation based in Albuquerque, New Mexico. As president of DGM, Defendant paid the
company’s bills and signed the checks for all employees after those checks were prepared
by an independent bookkeeping service.
{3} In June 2002, DGM performed work as a subcontractor at Zuni High School on the
Zuni Indian Reservation in McKinley County (the Zuni project). George Mulvaney was the
construction superintendent for DGM, and his duties included supervising the Zuni project
construction site and reporting employees’ hours to the independent bookkeepers. The
bookkeepers prepared the payroll checks based on the hours reported by either Defendant
or Mulvaney and submitted the prepared checks to Defendant, who then signed them.
Defendant would then meet Mulvaney either in Albuquerque or halfway between
Albuquerque and the Zuni Indian Reservation and give the checks to Mulvaney to forward
to the employees.
{4} Leo Eracho, Vicki Kallestewa, and Benjamin Kallestewa (the laborers/payees), all
enrolled members of the Zuni Tribe, were employed by DGM to work on the Zuni project.
They were paid every Friday for work they performed during the week ending the previous
Friday. They received the checks identified as State’s Exhibits 1, 2, and 3, dated June 21 and
June 27, 2002, in return for their labor.
{5} The three laborers/payees customarily went to Joe Milo’s Trading Company (Milo’s),
a business located twenty miles south of Gallup, New Mexico, every Friday to cash their
checks. Joe Milosevich, the owner of Milo’s, cashed the checks identified as State’s
Exhibits 1, 2, and 3 for the laborers/payees. He then deposited the checks in his own account
but was denied payment due to insufficient funds. Milosevich resubmitted the checks twice,
only to have them returned for insufficient funds. He deposited the checks a third time, but
they were returned because the account was closed.
{6} Milosevich then sent a certified letter to Defendant regarding the dishonored checks
at the address listed on the checks, but the letter was returned as unclaimed. Milosevich
testified that his attorney attempted to contact DGM, but to no avail.
{7} Based upon the dishonored checks issued to the laborers/payees which remained
unpaid by Defendant, the State charged Defendant with four counts of issuing worthless
checks in violation of Section 30-36-4. A jury convicted Defendant of all four counts, and
the district court entered an order for conditional discharge. This appeal followed.
DISCUSSION
2
Subject Matter Jurisdiction
{8} Defendant claims that the district court erred in denying her motion to dismiss for
lack of jurisdiction. She contends that because the laborers/payees were all members of the
Zuni Tribe performing work on Zuni land and because the checks were delivered to the
laborers/payees on Zuni land, New Mexico courts do not have jurisdiction over the criminal
prosecution.
{9} On the question of whether a New Mexico court has criminal jurisdiction to
prosecute Defendant, we review whether the law was correctly applied to the facts, viewing
the facts in the light most favorable to the prevailing party. State v. Frank,
2002-NMSC-026, ¶ 10, 132 N.M. 544, 52 P.3d 404. We defer to the district court’s findings
of fact if they are supported by substantial evidence and review questions of law de novo.
Id.; see State v. Dick, 1999-NMCA-062, ¶ 6, 127 N.M. 382, 981 P.2d 796.
{10} Defendant contends that the district court lacked criminal jurisdiction over her
because the alleged crimes were committed against Indians in Indian country. It is
undisputed that Defendant is not a member of an Indian tribe; however, she notes that
Mulvaney delivered the checks to the laborers/payees on Indian land and argues that,
because the crimes occurred on Indian land, prosecution is within the jurisdiction of the
tribal court. See generally Dick, 1999-NMCA-062, ¶ 7 (recognizing the general principle
that a state has no jurisdiction over crimes committed by or against an Indian in “Indian
country” (internal quotation marks and citation omitted)).
{11} We disagree because the evidence does not establish that all of the elements of the
crime took place on Indian land. See State v. Clark, 2000-NMCA-052, ¶¶ 5-7, 129 N.M.
194, 3 P.3d 689 (holding that the district court had jurisdiction to try a Native American
defendant for the crimes of larceny and conspiracy when the crimes were initiated within
Indian country but continued outside the boundaries of Indian country into New Mexico).
Milo’s is located in McKinley County. In addition, the checks were initially signed by
Defendant in Albuquerque and delivered to Mulvaney at some point approximately halfway
between Albuquerque and the construction site on the Zuni Indian Reservation. This
evidence shows that at least some of the elements of the crimes took place in either
Bernalillo County or McKinley County in locations that were not in Indian country.
Therefore, New Mexico had jurisdiction to prosecute Defendant for these crimes.
{12} Defendant contends that the district court arguably exceeded its authority in taking
judicial notice of the fact that Milo’s was in McKinley County and, therefore, there is a
question as to whether the laborers/payees cashed their checks on Indian land. We disagree.
Milosevich testified, without contradiction, that he ran the trading post located
approximately twenty miles south of Gallup. Furthermore, Benjamin Kallestewa testified
that he and the other laborers/payees cashed their checks at Milo’s because it cost less than
cashing them on the Zuni Indian Reservation.
{13} The district court was authorized to take judicial notice of a generally known location
in the absence of some evidence suggesting otherwise. See Rule 11-201(B)(1), (2) NMRA
3
(stating that a trial court may take judicial notice of facts “not subject to reasonable dispute”
that are either “generally known within the community,” or “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned”);
Trujillo v. Dimas, 61 N.M. 235, 244-245, 297 P.2d 1060, 1066 (1956) (observing that a court
may take judicial notice of geographical facts which are provable by reference to maps); cf.
State v. Tooke, 81 N.M. 618, 619, 471 P.2d 188, 189 (Ct. App. 1970) (“New Mexico allows
its courts to take judicial notice of boundaries of the state and counties therein.”), overruled
on other grounds by State v. Ruffins, 109 N.M. 668, 789 P.2d 616 (1990). Furthermore, even
if Milo’s is on Indian land, Defendant engaged in other activities that contributed to the
crimes while not on Indian land, including signing the checks and delivering them to
Mulvaney. Therefore, jurisdiction was proper in the New Mexico court. See Clark,
2000-NMCA-052, ¶¶ 5-7.
{14} Finally, even though Milosevich cashed the checks for the laborers/payees, his
testimony indicates that he did not seek reimbursement from them after the checks were
dishonored and, therefore, he was the ultimate victim of Defendant’s wrongful acts. See UJI
14-1670 NMRA (requiring that the defendant intended to deceive someone by use of the
worthless check but containing no requirement that the person injured be the person
deceived by the defendant). Because there is no indication that Milosevich is Native
American, New Mexico had jurisdiction to prosecute these crimes even if they occurred on
Indian land. See generally State v. Warner, 71 N.M. 418, 422, 379 P.2d 66, 69 (1963)
(concluding that “New Mexico [s]tate [c]ourts have jurisdiction over criminal offenses
committed on an Indian reservation within this state, by non-Indians, which are not against
an Indian nor involving Indian property”).
{15} Based upon the foregoing, the New Mexico district court had jurisdiction over
Defendant for these offenses.
Venue
{16} Defendant claims that venue was improper in McKinley County because none of the
material elements of the crimes occurred there. “A motion to dismiss for improper venue
involves questions of law that we review de novo.” Gardiner v. Galles Chevrolet Co.,
2007-NMSC-052, ¶ 4, 142 N.M. 544, 168 P.3d 116; State v. Roybal, 2006-NMCA-043, ¶
25, 139 N.M. 341, 132 P.3d 598.
{17} We initially note that affirmance of the district court’s refusal to dismiss for improper
venue is justified based on untimeliness alone. Defendant entered a waiver of arraignment
on January 27, 2006. She alerted the trial court that venue might be an issue, but did not
move to dismiss for lack of proper venue until July 17, 2006, the day before trial was to
commence. Pursuant to the Rules of Criminal Procedure, Defendant must file a motion to
dismiss for improper venue within ninety days of arraignment. See Rule 5-601(D) NMRA.
Her failure to file a motion challenging venue for almost six months after waiving
arraignment provides justification for the district court’s finding that Defendant waived her
objection to improper venue. See Rule 5-601(D); see also State v. Lopez, 84 N.M. 805,
807-08, 508 P.2d 1292, 1294-95 (1973) (recognizing that an objection to venue may be
waived if not brought in a timely fashion).
4
{18} Even if Defendant’s motion had been timely, we agree with the district court that the
motion was not well taken. A “trial may be had in any county in which a material element
of the crime was committed.” NMSA 1978, § 30-1-14 (1963). Furthermore, venue “may
be established by a mere preponderance of the evidence.” Roybal, 2006-NMCA-043, ¶ 19.
Therefore, venue was proper in McKinley County as long as a preponderance of the
evidence showed that a material element of the crime was committed there. See State v.
Wise, 90 N.M. 659, 662, 567 P.2d 970, 973 (Ct. App.1977) (rejecting as “frivolous” the
defendant’s contention that the state failed to prove that any material element of the crime
of receiving stolen property occurred in Bernalillo County because there was “an abundance
of evidence [showing] that the ‘receiving’ occurred [there]”).
{19} In this case, the evidence showed that the laborers/payees were hired, provided their
services, and paid in McKinley County. Moreover, the ultimate victim, Milosevich, cashed
the checks for the laborers/payees in McKinley County where he operated his business.
Because these elements of the crime were committed in McKinley County, venue was proper
there.
{20} Defendant argues that every action allegedly committed by her took place in
Bernalillo County because the evidence showed that Defendant worked in DGM’s office in
Albuquerque and signed the checks there. Defendant also notes the lack of evidence
indicating that she was ever present in McKinley County during the relevant time period.
{21} We are not persuaded that venue was improper in McKinley County merely because
many of the acts leading to Defendant’s convictions occurred outside that county. Defendant
cites Marsh v. State, 95 N.M. 224, 620 P.2d 878 (1980), in support of her claim that venue
was improper. In Marsh, our Supreme Court held that venue was proper, but not
appropriate, in Valencia County because the charges of possession and conspiracy were
based on the defendant’s conduct in flying over Valencia County en route to McKinley
County where 479 pounds of marijuana were unloaded. Id. at 225, 620 P.2d at 879. The
Court held that venue was more appropriate in McKinley County because there was a more
substantial nexus between the criminal acts and that county. Id.{22} Defendant contends, based on Marsh, that the district court should have dismissed
the charges because the more appropriate venue was Bernalillo County which had “the most
significant contact[]” with Defendant’s alleged criminal acts. See id. at 227, 620 P.2d at 881.
We disagree and note that this Court rejected a similar argument in Roybal, 2006-NMCA-
043, ¶¶ 30-32.
{23} In Roybal, the district court dismissed the trafficking charges filed against the
defendant in Santa Fe County because even though the officer began pursuing the defendant
in Santa Fe County, the car was actually stopped and searched in Rio Arriba County. Id. ¶¶
1, 26. The defendant argued that venue was improper in Santa Fe County because the
majority of the criminal actions occurred in Rio Arriba County and claimed that, “when a
crime is committed in multiple counties, Marsh mandates” prosecution in the county that has
the most “‘significant contacts with the alleged criminal acts of [the d]efendant.’” Id. ¶ 30
(quoting Marsh, 95 N.M. at 227, 620 P.2d at 881). This Court disagreed and observed that
5
“there is no specific language in the [venue] statute requiring the chosen venue to be the
county with the most significant contacts or the more substantial nexus with the criminal acts
of [the d]efendant.” Roybal, 2006-NMCA-043, ¶ 31 (internal quotation marks and citation
omitted).
{24} The Roybal Court distinguished the result in Marsh because in Marsh: (1) the
Supreme Court was exercising its power of superintending control, which the Court of
Appeals does not have, see N.M. Const. art. VI, § 3; (2) there were policy concerns
regarding the need to avoid possible conflicts with a judge; (3) any contact with Valencia
County was merely incidental because the airplane carrying marijuana merely passed over
Valencia County on its way to McKinley County, where all of the criminal activity occurred;
and (4) any prosecution in Valencia County would be remote from the location of the
defendant and the witnesses. Roybal, 2006-NMCA-043, ¶ 32; see Marsh, 95 N.M. at 226-
27, 620 P.2d at 880-81. Based on these distinctions and the language of the venue statute
itself, this Court in Roybal held that “venue was established by a preponderance of the
evidence in Santa Fe County, [and] the [district] court erred in dismissing the charges.”
2006-NMCA-043, ¶ 32.
{25} The underlying facts of this case, similar to those in Roybal, exhibit a greater nexus
between the alleged criminal activity and the chosen county than what was presented in
Marsh. As previously discussed, the laborers/payees performed services on behalf of DGM
in McKinley County, they were paid in McKinley County, and they negotiated the checks
for cash at Milo’s in McKinley County. Furthermore, the evidence belies Defendant’s claim
that McKinley County was an inconvenient forum for key witnesses for the State because
both Milosevich and the laborers/payees were apparently located in McKinley County.
Therefore, the district court did not err in denying Defendant’s motion to dismiss for
improper venue.
Sufficiency of the Evidence
{26} Defendant challenges the sufficiency of the evidence to support her convictions.
Specifically, she contends that there was insufficient evidence to establish a
“contemporaneous transaction” between the labor performed and the issuance of and
attempts to cash the checks. She also contends the evidence was insufficient to show that
she had the requisite intent to commit the crimes because the State failed to establish that she
knew that funds were insufficient to pay the checks. Because we agree with Defendant’s
first contention, we reverse and need not consider whether there was sufficient evidence
regarding Defendant’s intent.
{27} In general, when reviewing a challenge to the sufficiency of the evidence, we review
the evidence introduced at trial to determine “whether substantial evidence of either a direct
or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with
respect to every element essential to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753
P.2d 1314, 1319 (1988). We view the evidence in the light most favorable to the verdict,
resolving all conflicts and indulging all inferences in favor of the verdict. See State v.
Apodaca, 118 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994).
6
{28} “Although framed as a challenge to the sufficiency of evidence, [the d]efendant's
argument requires us to engage in statutory interpretation to determine whether the facts of
this case, when viewed in the light most favorable to the verdict, are legally sufficient to
sustain a conviction” for issuing worthless checks. State v. Barragan, 2001-NMCA-086, ¶
24, 131 N.M. 281, 34 P.3d 1157. Issues of statutory interpretation and construction are
questions of law subject to de novo review. Id.{29} Defendant was charged with four counts of issuing worthless checks over $25 or
more pursuant to Section 30-36-4 of the Worthless Check Act, NMSA 1978, §§ 30-36-1 to
-10 (1963, as amended through 1984). Section 30-36-4 provides that
[i]t is unlawful for a person to issue in exchange for anything of value, with
intent to defraud, any check, . . . knowing at the time of the issuing that the
offender has insufficient funds in or credit with the bank . . . for the payment
of such check . . . in full upon its presentation.
(Emphasis added.) The offense is commonly known as “fraud by worthless check.” State
v. Platt, 114 N.M. 721, 722, 845 P.2d 815, 816 (Ct. App. 1992).
{30} In keeping with the requirement that Defendant issue the check “in exchange for
anything of value,” the jury was instructed that the State had to prove beyond a reasonable
doubt that Defendant issued checks to the laborers/payees and the laborers/payees “gave
service” for the checks. See UJI 14-1670 (requiring the State to prove that the recipient of
the check gave money or something which had value in exchange for the check); State v.
Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App. 1986) (“Jury instructions become
the law of the case against which the sufficiency of the evidence is to be measured.”).
Before trial and again after the State put on its case in chief, Defendant moved for a directed
verdict, arguing that the evidence showing that the checks were issued to the laborers/payees
as wages for the work they performed did not qualify as checks issued “in exchange for
anything of value” as required under the statute. She argued below and contends on appeal
that the evidence was insufficient to establish that the checks were issued in exchange for
something of value because it failed to show that the checks were delivered as part of a
“contemporaneous transaction” with the services provided. We agree.
{31} It is well established that a check given in payment for an antecedent or pre-existing
debt is not covered by the Worthless Check Act. See Platt, 114 N.M. at 722-23, 845 P.2d
at 816-17 (recognizing that under what is sometimes called the “pre-existing debt rule,”
someone who issues a worthless or subsequently dishonored check in satisfaction of an
antecedent or pre-existing debt will not be liable under the Worthless Check Act); State v.
Davis, 26 N.M. 523, 525, 194 P. 882, 882 (1921) (construing the predecessor to the
Worthless Check Act and holding that the defendant was not liable under the statute when
he issued a worthless check for payment of a pre-existing debt); cf. State v. Tanner, 22 N.M.
493, 495, 164 P. 821, 822 (1917) (interpreting the predecessor to the Worthless Check Act
and recognizing that the defendant issued the check under false pretenses when he did not
possess adequate funds and the check was issued “to induce the person to whom it is made
to part with something of value” (internal quotation marks and citation omitted)). The lack
of criminal liability is predicated on the fact that even though the check has been dishonored,
7
the debt remains unpaid and, therefore, the issuer did not receive anything of value in
exchange for the check. See § 30-36-4 (requiring that the check be issued “in exchange for
[something] of value”); Davis, 26 N.M. at 525, 194 P. at 882 (recognizing that something
of value must have been received by the defendant in exchange for the check or that
otherwise there “can be no intent to defraud, which is the gist of the offense” and
recognizing that nothing of value is received at the time a check is issued in payment on an
account because the debt is only satisfied if the check is honored).
{32} The holdings in Davis, Tanner, and Platt support the conclusion that payment of a
pre-existing debt with a worthless check is not covered by the Worthless Check Act.
However, they do not directly address the question of whether payment of wages earned is
payment of a pre-existing debt, i.e., whether the laborers/payees provided services in
exchange for the dishonored checks. As previously discussed, the laborers/payees were paid
every Friday for work they performed during the week ending the previous Friday.
Therefore, unless the payment of wages over a week after those wages were earned
constitutes payment in exchange for the services rendered, the checks will be considered
payment of an antecedent or pre-existing debt and thus not encompassed within the
Worthless Check Act.
{33} New Mexico appellate courts have never considered whether the payment of wages
that have already been earned constitutes a payment on a pre-existing or antecedent debt or
whether it can be considered a “contemporaneous transaction.” In support of her contention,
Defendant alerts this Court to the cases cited in the Platt opinion and other cases standing
for the proposition that criminal statutes concerning worthless checks do not cover situations
in which the check is written after the goods have already been obtained or the services
rendered. She also notes, correctly, that the State’s answer brief fails to address the issue of
whether a contemporaneous transaction occurred in this case. Moreover, the State has failed
to cite any case law in support of its assertion that the evidence was sufficient to satisfy the
elements of Section 30-36-4. Cf. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329,
1330 (1984) (observing that if a party cites no authority to support an argument, we may
assume no such authority exists). Instead, it merely asserts in a conclusory fashion that the
evidence was sufficient for the jury to find that Defendant issued the checks to the
laborers/payees in exchange for their services.
{34} We first consider the cases cited in the Platt decision. See 114 N.M. at 723, 845 P.2d
at 817. Although none of those cases specifically address checks issued in payment for
wages, they suggest that conviction requires testimony or evidence that the recipient of the
check gave value or rendered performance specifically in reliance on the check; it is not
enough that performance was based on a promise to pay. See, e.g., Ledford v. State, 362
S.E.2d 133, 134 (Ga. Ct. App. 1987) (recognizing that “the payee must give up something
of value in reliance on the check in question” (internal quotation marks and citation
omitted)).
{35} For example, in Parker v. State, 484 So. 2d 1033, 1034-37 (Miss. 1986) (per curiam),
the payee was asked at trial whether, at the time he delivered the furniture to the defendant,
he was relying on the defendant’s credit or promise to pay at a later date, or whether the
payee was relying on the check when delivering the furniture. Id. at 1035. The payee
8
responded that he was “relying on the check” and stated that he would not have delivered
two loads of furniture on Friday and one load on Saturday had he not received the check.
Id. Based on this testimony, the court affirmed the defendant’s conviction for false pretenses
by delivery of a bad check. Id. at 1036 (recognizing that “[i]f a creditor-debtor relationship
is created by the transaction, a conviction of false pretenses may not stand [but] if the [s]tate
proves that a seller parts with something of value on the belief that the check is good at that
particular time, a conviction of false pretenses may be upheld”); see Hoyt v. Hoffman, 416
P.2d 232, 233 (Nev. 1966) (reversing the defendant’s conviction because the worthless check
was issued in payment of an overdue account and conviction would be inconsistent with the
purpose of Nevada’s Worthless Check Act, which is “to charge a defendant who obtains a
benefit as a result of the check”); Perry v. State, 594 P.2d 782, 784 (Okla. Crim. App. 1979)
(holding that it was a question of fact for the jury whether the defendant could be criminally
liable for issuing a worthless check because the payee performed services for the defendant
“upon [the] inducement of being paid by check” or whether the services were performed
under a credit agreement).
{36} In cases from other jurisdictions construing similar statutes where payment of wages
are concerned, courts have held that the defendant/employer cannot be held liable under
statutes similar to New Mexico’s Worthless Check Act because the wages constitute a pre-
existing debt. See, e.g., State v. Sinclair, 337 A.2d 703, 707-11 (Md. 1975) (holding that the
defendant could not be liable under Maryland’s worthless check statute when he issued a
check to a discharged employee representing payment to him for services rendered because
the defendant did not obtain anything of value based upon the employee’s reliance on the
check); State v. Cote, 62 Ohio Misc. 2d 202, 203-04 (Mun. Ct. 1991) (holding that when an
employer issues a check to an employee for wages earned, the employer has made payment
on a pre-existing debt and therefore the employer has not obtained any benefit nor has the
employee suffered a detriment from the dishonored check and thus the employer cannot be
convicted under Ohio’s Worthless Check Act).
{37} For example, in Hindman v. State, 378 So. 2d 663, 664 (Miss. 1980), the payee
agreed to act as mistress of ceremonies for a bridal show in exchange for $300. The payee
did the promised work and, at the end of the performance, the defendant paid the promised
$300. Id. When the check later bounced, the defendant was charged with and convicted of
fraud by worthless check. Id. The conviction was overturned on appeal because the
evidence failed to show that the payee’s performance was induced by reliance on the check.
Id. at 665 (stating that reliance on the validity of the check “must have been the efficient
inducement which moved the party receiving it to part with something of value, including
valuable services”). Because performance had already been completed before the check
issued, the check was not the inducement by means of which the services were obtained;
instead, the check was given to pay a debt that the defendant had already incurred, and “the
transaction d[id] not come within the definition of the crime proscribed.” Id.
{38} Based on the foregoing, we conclude that Defendant did not receive anything of
value in exchange for issuing the checks, and the laborers/payees did not give their labor in
exchange for the check. Instead, the checks were issued in satisfaction of the debt already
owed to the laborers/payees by virtue of their work; in essence, the checks were to satisfy
a pre-existing debt, and acceptance of the check did not discharge the company’s debt to the
9
employees for wages. Therefore, even viewing the evidence introduced at trial in the light
most favorable to conviction, Defendant cannot be liable under the Worthless Check Act.
{39} Even though reversal is warranted based on the facts of this case, our opinion should
not be interpreted to mean that a defendant who issues a worthless check after receiving
goods or services can never be guilty of violating the Worthless Check Act. See Platt, 114
N.M. at 722-23, 845 P.2d at 816-17 (holding that in certain circumstances a defendant can
be liable under the Worthless Check Act even though the check is issued after the goods
have been delivered); Ledford, 362 S.E.2d at 134 (affirming the defendant’s conviction for
issuing a worthless check based upon evidence showing that the goods were given on April
17 and payment was made on April 18 because the exchange constituted a “single
contemporaneous transaction” (internal quotation marks and citation omitted)). In Platt, the
evidence showed that the defendant had paid for flooring materials and services on the day
the materials were installed and delivered, January 2. 114 N.M. at 722, 845 P.2d at 816.
However, that check bounced and the defendant issued another check on January 16. Id.
After this check was also dishonored, the defendant was convicted under the Worthless
Check Act based upon the latter, January 16 check. Id. The defendant argued that he could
not be liable under the Worthless Check Act because the check was to pay a pre-existing
debt; the carpeting had been installed on January 2, and yet the check was not written until
January 16. Id. at 722-23, 845 P.2d at 816-17. This Court disagreed and held that even
though some of the goods and services were delivered before the check was issued, the facts
showed that the “parties intended to have a cash transaction,” and there was no evidence
indicating that the payee “intended to extend credit to [the] defendant.” Id. at 723, 845 P.2d
at 817.
{40} Platt does not warrant affirmance in this case because in Platt the recipients of the
check sought payment on the very day they provided services. Id. at 722, 845 P.2d at 816.
A second check was issued on January 16 after the first one was dishonored, but there is
nothing to suggest that the recipients ever agreed to a delay before being compensated for
their work. In contrast, the laborers/payees in this case worked for a week with the
expectation that they would have to wait another week before being paid for their labor.
Therefore, the work was performed in exchange for a promise to pay, not for the checks
themselves, Defendant did not receive anything of value in exchange for the checks, and she
cannot be liable under the Worthless Check Act for her actions in this case.
CONCLUSION
{41} For the foregoing reasons, we reverse Defendant’s convictions and remand for
proceedings consistent with this opinion.
10
{42} IT IS SO ORDERED.
____________________________________
CYNTHIA A. FRY, Chief Judge
WE CONCUR:
____________________________________
RODERICK T. KENNEDY, Judge
____________________________________
ROBERT E. ROBLES, Judge
Topic Index for State v. Cruz, No. 27,292
CL CRIMINAL LAW
CL-WC Worthless Check Offenses
CA CRIMINAL PROCEDURE
CA-EO Elements of Offense
EL EMPLOYMENT LAW
EL-CC Compensation and Commissions
IL INDIAN LAW
IL-TC Tribal Court Jurisdiction
IL-TJ Tribal and State Authority and Jurisdiction
JD JURISDICTION
JD-PR Personal
JD-SM Subject Matter
JD-VN Venue
ST STATUTES
ST-IP Interpretation
11