April 8, 2019- State of New Mexico v. Kevin L. Krohn, No. A-1-CA-35546

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 4/8/2019 11:12 AM
- W/k > |
Plaintiff-Appellee, enh Reymelic
v. No. A-1-CA-35546
KEVIN L. KROHN,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
James Waylon Counts, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM

for Appellee
Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM
for Appellant
MEMORANDUM OPINION

VANZI, Judge.

43 Defendant Kevin Krohn appeals his conviction for second-degree larceny

(over $20,000) in violation of NMSA 1978, Section 30-16-1 (2006). We reverse and

remand to the district court for a new trial.

1 BACKGROUND
2 	{2} 	Because this is a memorandum opinion and because the parties are familiar
3 with the facts and procedural history of the case, we set forth only such facts as are
4 necessary to decide the merits. For approximately twenty years, Defendant served
5 as a pastor at the Shepherd of the Hills Lutheran Church (the Church). At the same
6 time, Defendant also served as the treasurer of the Lincoln County Ministerial
7 Alliance (the Alliance), an independent charitable organization whose work in
8 helping the needy is funded by dues and contributions from local churches and
9 individuals. After discrepancies in the Alliance's bookkeeping came to light, the
10 	State charged Defendant with larceny (over $20,000) on December 13, 2013.1 The
11 	State alleged that Defendant funneled money from the Church through the Alliance
12 to his personal accounts for nearly a decade. The following testimony and evidence
13 	were presented at trial.
14 {3} 	The 	Church treasurer testified that 	she 	received 	numerous 	notes 	from
15 	Defendant directing her to forward churchgoer contributions to the Alliance. Several
16 	of the churchgoers confirmed that they intended their contributions to go to the
17 Church only and not to the Alliance. One churchgoer, Gregory Bischoff, testified
18 that he intended his $3,500 in contributions to go to the Church. Edward Osborne
1 The State also charged Defendant with embezzlement and conspiracy to
commit embezzlement; however, these charges were eventually dismissed.
2

1 similarly testified that he gave regular contributions for "the operation of [the
2 Church]" and not for the Alliance. The Alliance's check register, which Defendant
3 maintained, confirmed that these contributions were not deposited into the Church's
4 bank account but into the Alliance's account. Specifically, the check register showed
5 a $500 check from Bischoff deposited on January18, 2005, a $3,000 check from
6 Bischoff deposited on February 1, 2006, and fourteen checks totaling $3,200 from
7 Osborne deposited between January 2007 and December 2008. The Alliance's check
8 register also indicated that at least seventeen checks from the Church, totaling
9 approximately $16,000, were deposited between March 2005 and October 2008.
10 	{4} 	The Alliance's accountant testified at length about Defendant's management
11 	of the Alliance account. The accountant testified, in relevant part, that Defendant
12 deposited contributions intended for the Church into the Alliance account on
13 	numerous occasions and. withdrew large amounts of money in the form of cashier's
14 checks, 	which 	Defendant then 	deposited 	into 	his 	personal 	accounts. 	Finally,
15 	Defendant testified in his defense, claiming that he only diverted contributions he
16 believed were meant for the Alliance and that his withdrawals from the Alliance
17 account into his personal accounts were a "horrible mistake." The jury found
18 Defendant guilty, and this appeal followed.
3

1 DISCUSSION
2 	{5} 	Defendant challenges his conviction on three grounds: (1) fundamental error
3 in failing to instruct the jury on the single criminal intent doctrine (also known as
4 the single-larceny doctrine) for the numerous transactions that gave rise to the single
5 second-degree larceny charge; 	(2) insufficient evidence to support his larceny
6 conviction, and (3) fundamental error in failing to instruct the jury on the limitations
7 period where some of the aggregated transactions fell outside the applicable statute
8 of limitations. We conclude that the district court's failure to instruct the jury on the
9 single-larceny doctrine constituted fundamental error. Further, because there was
10 substantial evidence to support Defendant's larceny conviction, we remand to the
11 	district court for a new trial. Because we reverse and remand for failure to instruct
12 the jury on the single-larceny doctrine, we do not address the additional claim of
13 	error with respect to the statute of limitations.
14 Failure 	to 	Instruct the Jury 	on 	the Single-Larceny Doctrine 	Constituted
15 	Fundamental Error
16 	{6} 	Because Defendant failed to preserve any error with respect to instructing the
17 jury on the single-larceny doctrine, we review only for fundamental error. See Rule
18 	12-321(B)(2)(c) NMRA; see also State v. Barber, 2004-NMSC-019,, 8, 135 N.M.
19 621, 92 P.3d 633 ("Because Defendant failed to preserve any error with respect to
20 the definition of possession, we review only for fundamental error."). Fundamental
21 	error occurs in "cases with defendants who are indisputably innocent, and cases in
4

1 which 	a 	mistake 	in 	the 	process 	makes 	a 	conviction 	fundamentally 	unfair
2 notwithstanding the apparent guilt of the accused." Barber, 2004-NMSC-019, 117.
3 When this Court reviews jury instructions for fundamental error, we will reverse the
4 jury verdict only if doing so is "necessary to prevent a miscarriage of justice." State
5 v. 	Sandoval, 	2011-NMSC-022, 113, 	150 N.M. 	224, 	258 	P.3d 	1016 (internal
6 quotation marks and citation omitted). In reviewing a district court's failure to
7 instruct, we must determine "whether a reasonable juror would have been confused
8 or misdirected by the jury instructions." Id. 120 (alteration, internal quotation marks,
9 and citation omitted). 	"[J]uror confusion or misdirection may stem . . . from
10 ·instructions ... which, through omission or misstatement, fail to provide the juror
11 	with an accurate rendition of the relevant law." State v. Benally, 2001-NMSC-033,
12 1 12, 131 N.M. 258, 34 P.3d 1134.
13 	{7} 	The district court instructed the jury, as requested by Defendant and consistent
14 with UJI 14-1601 NMRA, as follows:
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For you to find [D]efendant guilty of larceny, the' [S]tate must
prove to your satisfaction beyond a reasonable doubt each of the
following elements of the crime:·
1. 	[D]efendant 	took 	and 	carried 	away 	over 	$20,000,
belonging to another;
2. 	At the time he took this property, [D]efendant intended to
permanently deprive the owner of it;
3. 	[D]efendant did not act under a mistake of fact[;]
5

1
2
4. 	This 	happened 	in 	New 	Mexico 	on 	or 	between ...
November 8, 2000 and September 16, 2010.
3 Defendant asserts that the 	district court committed fundamental 	error by not
4 instructing the jury on the single-larceny doctrine. We agree.
5 	{8} 	The single-larceny doctrine provides that "[w]here ... property is stolen from
6 the same owner and from the same place by a series of acts ... pursuant to a single,
7 sustained, criminal impulse and in execution of a general fraudulent scheme, they
8 together constitute a single larceny, regardless of the time which may elapse between
9 each act." State v. Allen, 1955-NMSC-015,, 4, 59 N.M. 139,280 P.2d 298 (internal
10 quotation marks and citation omitted). on· the other hand, "if each taking is the result
11 	of a separate, independent[] impulse, each [taking] is a separate crime[.]" Id. Unless
12 the court can determine as a matter of law that a defendant's larcenous actions
13 	resulted from a "single, sustained, criminal impulse[,]" the jury must decide the
14 factual question of intent. State v. Brooks, 1994-NMSC-062, ,, 6, 9, 117 N.M. 751,
15 	877 P.2d 557 (internal quotation marks and citation omitted); see State v. Johnson,
16 	1996-NMCA-Ol 7,, 9, 121 N.M. 337, 911 P.2d 231 ("Under the single[-]larceny
17 doctrine, if a series of acts cannot be said as a matter of law to be_ either a single
18 	crime or separate crimes, the factual question of intent must be decided by the
19 jury.").
20 	{9} 	While defendants often rely on the single-larceny doctrine as a means of
21 	avoiding multiple convictions for a series of acts, sometimes, as in this case, the
6

1 doctrine may work to the advantage of the State by treating as a serious felony what
2 would otherwise be multiple misdemeanors or lesser.-degree felonies. See State v.
3 Morro, 1999-NMCA-118, i125, 127 N.M. 763, 987 P.2d 420 ("The single-larceny
4 doctrine is not just an ameliorative doctrine to aid defendants; it may also hurt the
5 defendant 	by, 	say, 	treating 	as 	a 	felony 	what 	would 	otherwise 	be 	multiple
6 misdemeanors."). 	The 	determination 	of the 	nature 	of 	Defendant's 	intent 	is
7 particularly important in this case, where a jury finding that Defendant did not have
8 a continuing criminal intent connecting all of the transactions might well bar the
9 State from prosecuting Defendant at all due to the statutes of limitation periods
10 applicable to misdemeanors and lesser-degree felonies. See NMSA 1978, § 30-1-
11 	8(A)-(F) 	(2009) 	(providing 	for 	limitation 	periods 	of 	one 	year 	for 	petty
12 misdemeanors, two years for misdemeanors, and five years for third and fourth
13 	degree felonies); § 30-16-1 (providing that whoever commits larceny may be guilty
14 of anywhere from a second-degree felony to a petty misdemeanor depending on the
15 	value of the stolen property).
16 {to} 	In Brooks, our Supreme Court held that the district court's failure to instruct
17 the jury on the single criminal intent doctrine in a trial for multiple counts of
18 	embezzlement was fundamental error where it could not be said as a matter of law
19 that there existed a single intent with respect to each check or cash that was withheld
7

1 from deposit into a bank account. 1994-NMSC-062, ~ 15. 2 In that case, the state
2 charged the defendant, a bookkeeper for a property management service, with
3 several counts of embezzlement. Id. 	~~ 1-2. The evidence established that the
4 defendant took over $3,000 in cash from the property management service's seven
5 separate rental accounts on six days over a seven-week period. Id. ~ 2. The defendant
6 argued that all of the counts should have been merged into a single third-degree
7 felony under the single-larceny doctrine. Id.~ 3. The district court refused to merge·
8 the counts and did not instruct the jury on the single-larceny doctrine. Id. 	Our
9 Supreme Court reversed, observing that "factual questions of intent must be decided
10 by the jury unless the trial court can say under the circumstances that, as a matter of
11 	law, the act is either a separate crime or part of a broader scheme or plan." Id. ~ 9.
12 The Court first concluded that three of the counts alleging the taking of cash amounts
13 	withheld from a single day's deposit constituted a single count of embezzlement as
14 a matter of law because the underlying takings occurred on the same day. Id. ~ 15.
2The Legislature amended the embezzlement statute after Brooks by adding
that "[ e]ach separate incident of embezzlement or conversion constitutes a separate
and distinct offense." NMSA 1978, § 30-16-8 (1995); see State v. Faubion, 1998-
NMCA-095, ~ 9, 125 N.M. 670, 964 P.2d 834 (stating that Brooks was no longer
persuasive in embezzlement cases because it had been effectively replaced by the
amendments to Section 30-16-8). However, the Legislature again amended Section
30-16-8 in 2007 to delete the added provision. See NMSA 1978, § 30-16-8 (2007).
Although we need not now decide whether Brooks remains good law in the
embezzlement context, we find Brooks instructive in the larceny context, as the
larceny statute included no similar history of legislative amendments. See § 3 0-16-
1 (history).
8

1 The Court also concluded, "[a]s to all counts in general, because this Court cannot
2 say as a matter of law whether there existed a single intent, it was fundamental error
3 for the [district] court not to instruct the jury on the single criminal intent doctrine."
4 Id., 15.
5 {11} 	Similarly, in Johnson, this Court was unable to determine, as a matter of law,
6 whether the defendant had a single criminal intent based on his sporadic acts of
7 unlawfully buying, trading, and possessing federal food coupons. 1996-NMCA-017,
8 110. The defendant was charged with and convicted of thirteen counts of unlawful
9 trading in federal food coupons based upon thirteen incidents of exchanging food
10 coupons for property or information from an undercover officer. Id. 111-3. The
11 	defendant argued for the first time on appeal that the district court committed
12 fundamental error by failing to instruct the jury on the single-larceny doctrine. Id.
13 1 7. 	Although it was ultimately unnecessary to 	decide whether the 	omission
14 constituted fundamental error, we nevertheless addressed the issue in the event it
15 	arose on retrial. See id. Noting the factual similarity to Brooks, we explained that the
16 defendant in Johnson had "engaged in sporadic acts with one person of unlawfully
17 buying, trading, and possessing food coupons ... [and] did not know when he would
18 	obtain property or valuable information to exchange.for [the] coupons." Id. 112-3,
19 	10. Concluding that it could not be said as a matter oflawthat the defendant's "intent
20 was to achieve a single, fraudulent scheme or plan through the commission of several
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1 acts," we directed the district court on remand to instruct the Jury "on the single
2 criminal intent doctrine." Id. 	, 	l O (citation omitted). Brooks and Johnson both
3 dictate that unless we can determine whether a defendant acted upon a single,
4 sustained criminal intent as a matter of law, failure to instruct the jury in this regard
5 constitutes fundamental error.
6 {12} 	No such determination can be made from the record in this case. The evidence
7 adduced at trial demonstrated that Defendant diverted contributions from the Church
8 to the Alliance on dozens of occasions over the course of many years. The Brooks
9 Court could not determine whether a bookkeeper's embezzlement on six occasions
10 over the course of seven weeks was the result of a single criminal _impulse, see 1994-
11 	NMSC-062, 112, 15, and we are no more able to make such a determination here,
12 where there were many more takings over a significantly longer period. Like the
13 	defendant in Johnson, Defendant here sporadically diverted the contributions and
14 did not appear to know when he would be able to divert the contributions, as they
15 	came from different churchgoers at varying intervals. 1996-NMCA-O 17, 1 10. Given
16 this record, we cannot determine as a matter of law whether Defendant's acts were
17 the result of a single criminal intent.
18 	{13} 	The State contends that Defendant should not now be heard to argue for a
19 	single-larceny instruction because it is contrary to his theory of the case at trial-
20 i.e., Defendant mistakenly believed the churchgoers intended their contributions to
10

1 go to the Alliance-which the jury apparently rejected. However, we fail to see how
2 Defendant's theory that he operated under a mistake of fact is inconsistent with the
3 theory that he did not have a single criminal intent. By presenting a mistake of fact
4 defense, Defendant was also necessarily advancing the theory that he was not
5 operating under a continuing criminal intent because he had no criminal intent. Nor
6 does the fact that the jury found Defendant guilty mean that they also found he had
7 a continuing criminal intent, as they were not instructed on this issue and thus were
8 never given the opportunity to decide this issue. See Brooks, 1994-NMSC-062, ,r 9
9 ("[T]o instruct the jury that the state must prove the defendant acted intentionally to
10 deprive the owner of his property presents for the fact[-]finder no question at all as
11 	to whether such intent was a separate impulse or a sustained plan."). Accordingly,
12 we hold that the district court's failure to instruct the jury on the single-larceny
13 	doctrine constituted fundamental error.
14 	Substantial Evidence Supported Defendant's Conviction for Larceny
15 	{14} 	Notwithstanding our determination that fundamental 	error occurred, 	we
16 review for sufficiency of the evidence to ensure that retrial will not implicate
17 Defendant's right to be free from double jeopardy. See State v. Arrendondo, 2012-
18 NMSC-013, ,r 22, 278 P.3d 517 (holding that retrial following appeal is not barred
19 where "evidence below was sufficient to support a conviction under the erroneous
20 jury instruction"). "The test for sufficiency of the evidence is whether substantial
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1 evidence of either a direct or circumstantial nature exists to support a verdict of
2 guilty beyond a reasonable doubt with respect to every element essential to a
3 conviction." State v. Largo, 2012-NMSC-015, 130,278 P.3d 532 (internal quotation
4 marks and citation omitted). "Substantial evidence is relevant evidence that a
5 reasonable mind might accept as adequate to support a conclusion." Id. (internal
6 quotation marks and citation omitted). "In reviewing whether there was sufficient
7 evidence to support a conviction, we resolve all disputed facts in favor of the [s]tate,
8 indulge all reasonable inferences in support of the verdict, and disregard all evidence
9 and inferences to the contrary." Id. (internal quotation marks and citation omitted).
10 "We do not reweigh the evidence or substitute our judgment for that of the fact[-
11 	]finder as long as there is sufficient evidence to support the verdict." State v. Pitner,
12 2016-NMCA-102, 16,385 P.3d 665 (internal quotation marks.and citation omitted).
13 	{15} 	"[T]he jury instructions become the law of the case against which the
14 	sufficiency of the evidence is to be measured." Arrendondo, 2012-NMSC-013, 118
15 	(alteration, 	internal 	quotation marks, 	and 	citation omitted). 	In New Mexico,
16 "[l]arceny consists of the stealing of anything of value that belongs to another."
17 	Section 30-16-l(A). As noted earlier, the jury instructions, which were based on UJI
18 	14-1601, provided that the State had to prove beyond a reasonable doubt that
19 Defendant, among other things, "took and carried over $20,000, belonging to
20 	another[.]" Defendant argues there was insufficient evidence to support a conviction
12

1 for larceny "because if [he] were guilty of anything[,] it was embezzlement." We
2 understand Defendant's argument to be that there was not sufficient evidence of a
3 wrongful taking because the Church entrusted him with its money. See State v.
4 Bryant, 1982-NMCA-l 78, ~ 8, 99 N.M. 149,655 P.2d 161 ("Embezzlement differs
5 from the crime of larceny in that the property which is the subject of embezzlement
6 was originally lawfully obtained by the accused and was later fraudulently converted
7 or appropriated to his own use with an intent to deprive the owner thereof. Larceny,
8 contrasted therewith, 	involves the element 	of an original wrongful taking or
9 trespass." (citations omitted)); see also State v. Archie, 1997-NMCA-058, ~ 5, 123
10 N.M. 503,943 P.2d 537 ("When the defendant is in lawful possession of the owner's
11 	property, which the defendant then fraudulently converts to his or her own use, the
12 defendant cannot be convicted of larceny because there is no trespassory taking.").
13 	We agree that an individual who fraudulently converts the property with which he
14 or she was entrusted can only be convicted of embezzlement, not larceny. However,
15 	viewing the evidence in the light most favorable to the verdict, there was substantial
16 evidence that the Church did not entrust Defendant with its money, and therefore,
17 the takings were trespassory.
18 	{16} 	According 	to 	Defendant, 	the 	fact 	that 	the 	Church 	treasurer 	followed
19 Defendant's requests to send the contributions to the Alliance indicates Defendant
20 "had at least implied authority to dispose of the money." We disagree. Merely
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1 because a person entrusted with certain property abides by another's request to
2 dispose of that property does not mean, ipso facto, the requester is also entrusted
3 with the property. Rather," '[e]ntrustment' occurs when property is committed or
4 surrendered to another with a certain confidence regarding the care, use, or disposal
5 of that property." Id. 14. Defendant's reliance on State v. Peke, 1962-NMSC-033,
6 70 N.M. 108,371 P.2d 226, is unavailing. In that case, our Supreme Court held that
7 the defendant was entrusted with an association's funds despite having no specific
8 authority to endorse its checks. See id. 1121-23. However, the defendant in Peke
9 had significant autonomy and authority over the association's funds, 	see 	id.,
10 whereas, here, there was substantial evidence that the Church did not entrust
11 	Defendant with its money in any significant way. Specifically, the Church treasurer
12 testified that Defendant had "i:io fiduciary responsibility" to the Church because he
13 	had no control over collecting, counting, or spending the Church's money. Indeed,
14 the fact that Defendant had to ask the treasurer to send the contributions to the
15 	Alliance could lead a rational juror to conclude that the Church did not entrust
16 Defendant because he did not have the authority to send the contributions himself.
17 {t 7} 	As Defendant does not challenge the sufficiency of the evidence for any of
18 the 	other 	elements 	of 	larceny, 	we 	conclude 	substantial 	evidence 	supported
19 Defendant's larceny conviction.
14

1 We Need Not Address the Time Limitation Issues Raised by Defendant
2 	{18} 	In light of the foregoing conclusions, we need not consider Defendant's
3 argument that the jury should have been instructed on the statute of limitations
4 applicable to second-degree larceny. However, we pause to provide the district court
5 some guidance regarding the possible statute of limitations issue on remand. The
6 State was required to commence the prosecution for second-degree larceny within
7 six years from the time the crime was committed. See§ 30-l-8(A) (providing a six-
8 year statute of limitations for second-degree felonies); § 30-16-l(F) (providing that
9 "[w]hoever commits larceny when the value of the property stolen is over twenty
10 thousand dollars ($20,000) is guilty of a second-degree felony"). In other words, the
11 	State cannot prosecute Defendant for larcenous actions falling outside of the six-
12 year period unless they were driven by the same criminal intent as his larcenous
13 	actions falling within that period (i.e., all 	of the actions constituted a single,
14 continuing larceny). Thus, whether or not the statute of limitations will present an
15 	issue on remand depends on the jury's determination of the nature of Defendant's
16 	intent. For instance, if the jury finds that Defendant diverted contributions from the
17 Church over the years with a continuing criminal intent, the period of limitations
18 would begin running only from the date of the last transaction driven by the common
19 	intent-which appears here to have come within the limitations period. Cf State v.
20 	Thoreen, 	1978-NMCA-024, ~ 59, 91 N.M. 624, 578 P.2d 325 (holding that the
15

1 limitations period applicable to a prosecution for conspiracy ran from the time the
2 last overt act in furtherance of the conspiracy was committed). On the other hand, a
3 finding by the jury of a single, discrete intent for each transaction might also obviate
4 any statute of limitations issue because it does not appear that any one ofthe takings
5 satisfies the $20,000 threshold required for second-degree larceny. Alternatively, if
6 the jury finds a continuing intent linking some, but not all, of the transactions, the
7 precise period or periods in which those transactions occurred and the amounts taken
8 will be relevant in determining whether the statute 	of limitations period bars
9 conviction for some or all of the takings. Given these various possibilities, the
10 district court should be mindful of the statute oflimitations implications as it relates
11 	to the jury instructions and verdict form.
12 CONCLUSION
13 	{19} 	For the foregoing reasons, we reverse Defendant's conviction and remand to
14 the district court for further proceedings consistent with this opinion.
15 	{20} 	IT IS SO ORDERED.
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—

2

eS)

WE CONCUR:

MM 2

M. MONICA ZAMORA, Chief Judge

—= L. ATTREP, Judge

17