Preview:

STATE V. GARVIN, 2005-NMCA-107, 138 N.M. 164, 117 P.3d 970
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
PHILLIP GARVIN,
Defendant-Appellant.

Docket No. 24,299
COURT OF APPEALS OF NEW MEXICO
2005-NMCA-107, 138 N.M. 164, 117 P.3d 970
June 21, 2005, Filed.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY, Stephen Bridgforth, District Judge.
Certiorari Granted, No. 29,334, August 5, 2005. Certiorari Denied, No. 29,337, August 11, 2005. Released for Publication August 23, 2005.
COUNSEL
Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee. John Bigelow, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

JUDGES
JONATHAN B. SUTIN, Judge. WE CONCUR: MICHAEL D. BUSTAMANTE, Chief Judge, CELIA FOY CASTILLO, Judge. AUTHOR: JONATHAN B. SUTIN.

OPINION
SUTIN, Judge.
{1} Defendant Phillip Garvin, a homeless man, was in line at a local soup kitchen when a man he did not know, who identified himself as Jimmy or Santiago, asked Defendant if he wanted to earn money doing yard work, an offer that Defendant accepted.  The man asked Defendant if he had identification, if he would cash a check for him, and if he wanted to get something to eat.  Defendant accompanied the man to a bank where the man wrote a check to Defendant in the amount of $315.  Defendant signed the back of the check, walked to the counter, handed his driver's license to the teller, and cashed the check.
{2} Defendant tried to give the cash to the man in the bank, but he would not take the money until they got outside. The man drove to a fast food restaurant with Defendant, and gave Defendant $20 to get something for them both to eat.  The man said, "[W]e'll kill two birds with one stone, and I'll go get gas, and I'll be right back."  The man never returned.  Defendant suspected something was wrong, and he called the police and reported what had occurred.  After a police investigation, Defendant was arrested and charged with forgery.
{3} At trial, the State proved that the check belonged to a person named Sami Haddad, whose name was printed on the check.  Haddad's checkbook had been stolen.  The signature on the check purported to be that of Haddad, but it was not his signature. A videotape showed the transaction at the bank. A detective testified that Defendant had told him that he glanced at the check and was scared and freaked out at the time the check was cashed.
{4} Defendant asserts there was insufficient evidence to convict and that prosecutorial misconduct deprived him of a fair trial.  We reverse and remand for a new trial.
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
{5} Substantial evidence required to support a criminal conviction is such evidence that would be acceptable to a reasonable mind as adequate to support the conclusion.  State v. Sparks, 102 N.M. 317, 320, 694 P.2d 1382, 1385 (Ct. App. 1985).  In analyzing the sufficiency of the evidence, we inquire whether substantial evidence exists, either direct or circumstantial, "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).  In doing so, we view the evidence in the light most favorable to the verdict, resolving all conflicts in the evidence and indulging all permissible inferences to be drawn from it in favor of upholding the verdict. State v. Woodward, 121 N.M. 1, 11, 908 P.2d 231, 241 (1995).  This Court does not weigh the evidence, nor can we substitute our judgment for that of the jury so long as there is sufficient evidence to support the verdict. State v. Lankford, 92 N.M. 1, 2, 582 P.2d 378, 379 (1978). Nor do we substitute our judgment for that of the fact finder concerning the credibility of witnesses or the weight to be given their testimony.  State v. Riggs, 114 N.M. 358, 362-63, 838 P.2d 975, 979-80 (1992).  In a case involving circumstantial evidence, "reasonable doubt is not precluded unless [the] circumstantial evidence viewed in the light most favorable to the State gives rise to an equally reasonable inference of innocence." State v. Mora, 1997-NMSC-060, & 27, 124 N.M. 346, 950 P.2d 789.
B. The Law of Forgery
{6} Defendant was charged with one count of forgery by violating NMSA 1978, '30-16-10 (1963), which reads:
Forgery consists of:
A. falsely making or altering any signature to, or any part of, any writing purporting to have any legal efficacy with intent to injure or defraud; or
B. knowingly issuing or transferring a forged writing with intent to injure or defraud.
Whoever commits forgery is guilty of a third degree felony.
See also State v. Ruffins, 109 N.M. 668, 670, 789 P.2d 616, 618 (1990) (stating that under New Mexico law, a forgery is completed when a defendant "possessing the requisite intent:(1)falsely makes or alters a writing which purports to have legal efficacy; (2)physically delivers a forged writing; or (3)passes an interest in a forged writing"). In the present case, the jury was instructed that for it to find Defendant guilty of forgery, the State must prove that "[D]efendant gave or delivered to Bank of the Rio Grande a check knowing it to have a false signature intending to injure, deceive or cheat Bank of the Rio Grande or another[.]"

C. Sufficient Evidence for Conviction
{7} Defendant contends the State failed to prove beyond a reasonable doubt that he knew the signature on the check was false and that he cashed the check with the specific intent to injure, deceive, or cheat the bank. Recognizing that knowledge and intent can be established by circumstantial evidence, Defendant argues that the evidence did not rise to the level of certainty required by the burden of proof imposed on the State.  See State v. Wynn, 2001-NMCA-020,

Download 2005-NMCA-107.pdf

New Mexico Law