May 28, 2019- State of New Mexico v. Antonio G. Cobos, No. A-1-CA-35585

OCR transcription for search; preserved printed pages are authoritative

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STATE OF NEW MEXICO,

Court of Appeals of New Mexico
Filed 5/28/2019 11:42 AM

a= |
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Her Reynolds

Plaintiff-Appellee,
v. | | No. A-1-CA-35585
ANTONIO G. COBOS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Marci E. Beyer, District Judge

Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Kimberly Chavez-Cook, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
M. ZAMORA, Chief Judge.
43} Antonio G. Cobos (Defendant) appeals his conviction of second-degree
felony embezzlement (over $20,000), pursuant to NMSA 1978, Section 30-16-8(F)

(2007). Defendant asserts that (1) the district court erred by denying Defendant’s

motion to dismiss for violation of the Interstate Agreement on Detainers (IAD),

· 1 NMSA 1978, § 31-5-12 (1971); (2) the district court committed fundamental error
2 by allowing the State's superseding information charging embezzlement; and (3) the
3 State failed to prove embezzlement. We conclude the first two claims of error lack
4 merit. As to the third claim of error, we conclude there was only sufficient evidence
5 to support a conviction for fourth-degree embezzlement (over $500, but not more
6 than $2,500). We reserve discussion of the facts for our analysis of each issue.
7 DISCUSSION
8 I.
9
10 {2}
The District Court Did Not Err in 	Denying Defendant's Motion to
Dismiss for Violation of the Interstate Agreement on Detainers
Defendant was in.federal custody in Texas on unrelated charges when he was
11 	indicted in this case. On April 10, 2015, he was brought to New Mexico under the
12 	IAD. See § 31-5-12 (governing interstate transfer of detainees awaiting trial). On
13 	April 16, 2015, Defendant filed a waiver of arraignment. On April 17, 2015, the
14 district court entered a stipulated order of continuance of pre-trial conference
15 	because there were on-going plea negotiations, resetting the conference to July 2,
16 2015. 	On July 	2, 	2015, the district court entered another stipulated order 	of
17 continuance of pre-trial conference because of on-going discovery and Defendant
18 was awaiting a plea offer, setting the conference to July 20, 2015. It appears from
19 the record that the July 20, 2015, pre-trial conference did not take place ~d the
20 matter was reset fqr August 7, 2015. On August 6, 2015, the State filed a motion for
21 	continuance 	in 	order to 	obtain 	financial 	records 	for 	{he 	purpose 	of seeking
2

1 restitution. Defendant did not respond to the motion. On August 7, 2015, the district
2 court granted the State's motion and then reset the change of plea hearing for August
3 17, 2015. A change of plea did not occur on August 17, 2015, and the district court
4 instead set the trial for October 5-6, 2015. On September 16, 2015, the State moved
5 to continue the trial setting due to the unavailability of the case agent. On October
6 	1, 2015, the district court found good cause for the continuance and granted the
7 State's motion. On November 12, 2015, Defendant filed a motion to dismiss for
8 alleged violations of the IAD. The district court denied the motion, finding that the ·
9 two stipulated continuance requests extended the detainer clock until October 23,
10 2015, and the district court's October 1, 2015, continuance was timely made within
11 	the applicable 120-day period.
12 {3} 	The IAD "prescribes procedures by which ... a state may obtain ·for trial a
13 	prisoner who is incarcerated in another state." State v. 	Livernois, 1997-NMSC-
14 019, 123, 	123 N.M. 128, 934 P.2d 1057 (internal quotation marks and citation
15 	omitted); 	see 	§ 31-5-12. The IAD in relevant part states that "trial shall be
16 	commenced within one hundred twenty days of the arrival of the prisoner in the
17 receiving state, but for good cause shown in open court . . . the court having
18 jurisdiction of the matter may grant any necessary or reasonable continuance."
19 	Section 31-5-12, Art. 4(C). The IAD further explains that the running of th1s time
3

1 period "shall be tolled whenever and for as long as the prisoner is unable to stand
2 trial." Section 31-5-12, Art. 6.
3 	{4} 	In 	State 	v. 	Shaw, 	1982-NMCA-133, 	98 	N.M. 	580, 	651 	P.2d 	115, the
4 defendant, in the custody of the State of New Mexico under the IAD, filed numerous
5 pre-trial motions which in tum required pre-trial hearings, thereby resulting in a
6 delay in the commencement of trial. Id. ,r,r 1, 19. This Court rejected the State's
7 argument that the defendant should be de.emed to have consented to a continuance
8 or to have waived the time limit because he filed pre-trial motions. Id. ,r 19. In
9 rejecting the State's argument, this Court noted that to agree with the State would be
10 to penalize the defendant for doing what he needed to do procedurally within the
11 	context of his criminal proceedings. Id. ,r,r 20-21. This Court held that the pretrial
12 motions did not toll the time period under the IAD and that "time is toll~d only when
13 	the prisoner is 'unable to stand trial.'" Id. ,r 24 "[I]n all other circumstances, [the
14 IAD] provides the mechanism for reasonably or necessarily extending the time limits
15 	by a request for continuance 'for good cause shown.' " Id. ,r 24.
16 {5} 	InStatev. Montoya, 1994-NMCA-155, 119N.M. 95,888 P.2d977, this Court
17 again looked at whether dismissal for failure to comply with the time limits in the
18 	IAD was proper. Id. ,r 1. In that case, the defendant moved twice for continuances of
19 the trial setting, the defendant and state stipulated once to a continuance, and the
20 state sought one other continuance. Id. ,r,r 3-4. The defendant filed a motion to
4

1 dismiss for failure to comply with IAD time limits . .Id. 1 5. We reversed the district
2 	court's order granting the defendant's motion to dismiss the indictment for failure to
3 	comply with IAD time limits, holding that the defendant's requested continuance
· 4 extended the IAD time limits. Id. 11 5, 11. We distinguished the case from Shaw,
5 explaining that the defendant in Montoya affirmatively requested a continuance,
6 while the defendant in Shaw only filed pre-trial motions. Id. 1 8. The defendant in
7 Montoya also agreed to waive his right to a speedy trial. Id. 1 9. We held that
8 although the defendant did not specifically waive the IAD time limitations, a waiver
9 was implied in his waiver of speedy trial limitations. Id. 19. The IAD time limit was
10 extended because the district court granted the continuance at the defendant's
11 	request. Id. 1 11.
12 {6} 	Relying on Shaw, Defendant argues that the district court erred by tolling time
13 	during which Defendant was able to stand trial. Defendant contends that agreeing to
14 continuances of pretrial conferences, while simultaneously requesting trial settings,
15 	did not render Defendant "unable to stand trial." We, however, see this case as more
16 akin to Montoya. Because the State received custody of Defendant on April 10, 2015, .
17 trial was required to occur within 120 days, which would have been August 10, 2015.
18 	Section 31-5-12, Art. 4(C). By stipulating to two pre-trial conference conti~uances
19 and failing to respond to the State's request for a continuance of the pre-trial
20 	conference 	or 	otherwise 	obj'ect 	to 	the 	continuance, 	Defendant 	acquiesced 	m
5

1 continuing the time limits, which delayed bringing his case to trial and extended the
2 IAD time provisions. See Montoya, 1994-NMCA-155,, 8 ("Thus we see no reason
3 why a defendant who is not prepared for trial may not waive the time limits of IAD
4 	... by affirmatively requesting a continuance."). Under the circumstances, we agree
5 with the district court that the pre-trial continuances extended the 120-day period
6 from August 10, 2015, to at least October 23, 2015. Thus, the district court's October
7 	1, 2015 order, granting the State's continuance for good cause was within the IAD
8 time limits. Defendant has not argued that the district court's determination of good
9 cause was in error. Therefore, we affirm the district court's denial of Defendant's
10 motion to dismiss for violation of the IAD time limits.
11 	II.
12
13 	{7}
The District Court Did Not Commit Fundamental Error in Allowing the
Superseding Embezzlement Charge
Defendant was originally indicted on one count of fraud over $20,000,
14 contrary to NMSA 1978, Section 30-16-6(F) (2006). On the morning of trial, the
15 	State 	filed 	a 	criminal 	information 	charging 	Defendant 	with 	a 	single 	count
16 embezzlement over $20,000, contrary to Section 30-l 6-8(F), and replacing the grand
17 jury charge of fraud. Defendant did not object, and waived arraignment and a
18 preliminary hearing. The district court accepted the criminal information as a
19 replacement for the indictment.
20 	{8} 	On appeal, Defendant argues that the district court erred in allowing the
21 	State's subsequent criminal information charging embezzlement to supersede the
6

1 grand jury's indictment on fraud without determining whether Defendant was
2 prepared to defend against a second-degree embezzlement charge. Since Defendant
3 did not object, we review for fundamental error. See Rule 12-216(B)(2) NMRA
4 (1993, current version at Rule 12-321 NMRA) 	(providing an appellate court the
5 discretion to review questions of fundamental error or fundamental rights as an
6 exception to the preservation rule). "For an error to be deemed fundamental, it must
7 go to the foundation or basis ·of a defendant's rights or must go to the foundation of
8 the case or take from the defendant a right which was essential to his defense and
9 which no court could or ought to permit him to waive." State v. Romero, 2013-
10 NMCA-101, 18, 311 P.3d 1205 (internal quotation marks and citation omitted).
11 	{9} 	Rule 5-204(C) NMRA permits amendment of the indictment or criminal
12 information at trial only so long as it conforms with the evidence of the case and the
'
13 	particulars of the offense. "[U]nless such variance prejudices substantial rights of
14 the defendant[,]" it is not "grounds for ... acquittal." Rule 5.,204(C). "Prejudice
15 	exists when the defendant is unable to reasonably anticipate from the indictment the
16 nature of the proof the state will produce at trial." Romero, 2013-NMCA-101, 19.
17 	{10} 	Critically, Defendant fails to show how the subsequent criminal information
18 prejudiced his substantial rights. Defendant makes no showing that "his defense was
19 in any way impaired" by going to trial for embezzlement instead of fraud. State v.
20 	Meadors, 1995-NMSC-073, 120, 121 N.M. 38, 908 P.2d 731. Compare § 30-16-
7

1 8(A) ("Embezzlement consists of a person embezzling or converting to the person's
2 own use anything of value, with which the person has been entrusted, with fraudulent
3 intent to deprive the owner thereof."), with § 30-16-6(A) ("Fraud consists of the
4 intentional misappropriation or taking of anything of value that belongs to another
5 by means of fraudulent conduct, practices or representations."). Defendant makes no
6 showing that he was unable to reasonably anticipate the nature of the proof the State
7 would produce at trial. Absent some other showing of prejudice, we cannot say that
8 permitting 	the 	superseding 	criminal 	information 	was 	fundamental 	error. 	See
9 Romero, 	2013-NMCA-101, 	,-f 	9 	("In 	seeking 	acquittal, 	the 	defendant 	must
10 demonstrate actual prejudice; the mere assertion of prejudice alone is insufficient to
11 	establish error warranting reversal.").
12 III.
13
14 	{11}
There Is Only Sufficient Evidence to Support a Conviction for Fourth-
Degree Embezzlement
Defendant entered into two contracts with Maribel Samaniego and Jesus
15 	"Mike" 	Zamora, 	husband 	and 	wife 	(collectively, 	Purchasers), involving 	real
16 property in Chaparral, New Mexico (Property). The first contract, dated August 27,
17 2009, was entitled "Residential Lease-Purchase Agreement" and Defendant was
18 	identified 	as 	"Landlord" 	and 	Purchasers 	were 	identified 	as 	"Tenants." 	This
19 agreement required that Tenants pay rent in monthly installments of $506.31 for a
20 period 180 months amounting to a total of $91,136.54. Tenants also agreed to pay a
21 	non-refundable security deposit of $5,000 to Landlord, in two installments. After
8

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1 Tenants' 	final payment, "Landlord agrees to immediately sign and endorse a
2 QUITCLAIM DEED, assigning and delivering ownership of the [Property] to
3 [Purchasers]." At the time Purchasers entered into the first contract, they were aware
4 that there was also a mortgage loan on the Property and that money was owed on
5 that mortgage loan because it was specifically identified in the second contract
6 described below.
7 	{12} 	The "Mobile Home Sales Contract" was the second contract, signed in
8 September 2010, but backdated to August 27, 2009. It identified Purchasers as
9 "Purchaser" and Defendant as "Seller" and included the mobile home located on the
10 Property. The contract provided "[i]n consideration of the purchase price, immediate
11 	occupancy of [P]roperty, and performance of the covenants and agreements by the
12 Purchaser herein set forth, the Seller does hereby sell unto the Purchaser, [Property
13 	and the mobile home located on Property]." Purchasers agreed "to fulfill [the] Chase
14 Home Finance loan [(Chase mortgage)], in its entirety[] the current outstanding
15 	principal obligation [of] $41,360" plus interest for a term of360 months. The second
16 contract required Purchasers to make monthly principal and interest payments of
17 $317. 71. Purchasers also agreed to pay Defendant an additional $20,000 lump sum
18 payment "for the purchase of the [P]roperty."
19 {13} 	The Chase mortgage was in the name of Brenda Van Dyne, Defei+dant's
20 stepmother, who had died. On March 7, 2013, Defendant sent a letter to Chase Bank
9

1 informing the bank that the original mortgagor had died and explaining how he
2 received a warranty deed to the Property. He also stated he wanted to continue
3 paying the Chase mortgage and requested access to the details of the loan account.
4 In June 2013 Purchasers were served with a complaint for foreclosure 	of the
5 Property, declaring: "As of May 24, 2013, the Principal Balance due is $38,492.66,
6 plus interest ... from and including December 1, 2012, through and including May
7 25, 2013." A copy of the note was attached to the complaint, showing that the
8 monthly Chase mortgage payment for the Property was $31 7. 71. Ms. Samaniego
9 testified at trial that she stopped making payments to Defendant after receiving the
10 	complaint for foreclosure. On July 10, 2014, Defendant's wife, as attorney-in-fact
11 	for Defendant, sent a letter to Chase Bank, identifying Chase mortgage payments
12 Defendant submitted in December 2012 and January 2013 as well as a double
13 	payment in March 2013. Subsequently, Defendant and his wife filed for bankruptcy
14 and listed Purchasers as creditors with an unsecured claim in the amount of$20,000.
15 	{14} 	At trial, Purchasers testified that they assumed that the Chase mortgage was
16 in Defendant's name. Neither Purchaser had personal knowledge of what Defendant
17 did with their payments once they were made to Defendant. Both Purchasers
18 	acknowledged that there was nothing in either contract specifically requiring that
19 Defendant use the money they paid to pay the Chase mortgage. 	Purchasers
20 nevertheless testified that they believed their monthly payments were going to the
10

1 Chase 	mortgage. 	It 	was 	Purchasers' 	understanding 	from 	the 	contracts 	and
2 conversations with Defendant that their payments would be used to pay the Chase
3 mortgage. Purchasers further testified that Defendant told them that the additional
4 $20,000 lump sum payment would get them out of the Mobile Home Sales Contract
5 sooner 	because 	it 	brought 	down 	the 	total 	price 	of the 	mobile 	home 	from
6 approximately $90,000 to $60,000. Defendant also told them. that he needed the
7 $20,000 to deal with a problem he was having in Texas.
8 {15} 	On appeal, Defendant argues that the evidence is insufficient to support his
9 conviction for embezzlement. Defendant contends that money paid as an installment
10 payment toward a purchase price is not "entrusted" for any particular use except to
11 	reduce the balance owed, and that the State did not put on any evidence that
12 Defendant promised to use the Purchasers' monthly and lump sum payments for the
13 	sole 	purpose 	of paying 	the 	Chase 	mortgage. 	He 	asserts 	that 	there 	was 	no
14 "entrustment" because the payments made toward the purchase of the Property
15 	became Defendant's money and therefore, the money could not be "converted."
16 Defendant also contends that the State's circumstantial evidence of fraudulent intent
17 was insufficient to support a conviction for embezzlement.
18 	A. 	Standard of Review
19 	{16} 	In 	reviewing 	the 	sufficiency 	of the 	evidence 	to 	support 	Defendant's
20 conviction for embezzlement, "we must determine whether substantial evidence,
11

1 ·either direct or circumstantial, exists to support a guilty verdict beyond a reasonable
2 doubt for every essential element of the crimes at issue." State v. Mercer, 2005-
3 NMCA-023, 1 13, 137 N.M. 36, 106 P.3d 1283. "We must view the evidence in the
4 light most favorable to the guilty verdict, indulging all reasonable inferences and
5 resolving all conflicts in the evidence in favor of the verdict." State v. Holt, 2016-
6 NMSC-011, 1 20, 368 P.3d 409 (internal quotation marks and citation omitted).
7 Nevertheless, 	our 	appellate 	review 	requires 	"scrutiny 	of 	the 	evidence 	and
8 supervision of the jury's fact-finding function to ensure that, indeed, a rational jury
9 could have found beyond a reasonable doubt the essential facts required for a
10 conviction." State v. Rojo, 1999-NMSC-001, 1 19, 126 N.M. 438, 971 P.2d 829
11 	(emphasis, internal quotation marks, and citation omitted). And "[t]he reviewing
12 court must be able to articulate an analysis the jury might have used to determine
13 	guilt, and that analysis must be reasonable." State v. Baca, 1997-NMSC-018, 1 15,
14 	123 N.M. 124, 934 P.2d 1053 (internal quotation marks and citation omitted). We
15 	test sufficiency of the evidence against the jury instructions. Holt, 2016-NMSC-Ol 1,
16 120 ("The jury instructions become the law of the case against which the sufficiency
17 of the evidence is to be measured." (alterations, internal quotation marks, and
18 	citation omitted)).
19 	{17} 	In order to find Defendant guilty of second-degree embezzlement, the State
20 had to prove beyond a reasonable doubt that:
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1.
$20,000;
[D]efendant was entrusted with money with a value over
2. 	[D]efendant 	converted 	this 	money 	to 	[his] 	own
use. 	'Converting 	something 	to 	one's 	own 	use' 	means 	keeping
another's property rather than returning it, or using another's property
for one's own purpose rather than for the purpose authorized by the
owner;
· 3. 	At the time [D ]efendant converted the money, [D ]efendant
fraudulently intended to deprive the owner of the owner's property.
'Fraudulently intended' means intended to deceive or cheat;
4. 	This happened in New Mexico between September, 2010
and July, 2013.
13 	See UJI 14-1641 NMRA; see also Section 30-16-8(A), (F).
14 B. 	Entrustment of Another's Property and Conversion
15 	{18} 	The 	State's theory 	of embezzlement was that Defendant converted the
16 monthly and lump sum payments he received under the second contract to his own
17 use. "One cannot be guilty of embezzlement if he converts his own property; the
18 property converted must be that 'of another.' " 3 Wayne R. Lafave, Substantive
19 	Criminal Law§ 19.6(d), at 130 (3d ed. 2018); see State v. Earp, 2014-NMCA-059,
20 115, 326 P.3d 491 ("Because embezzlement necessarily requires the conversion of
21 	the property of another, a defendant cannot be guilty of embezzlement with respect
22 to property owned jointly by him, or in which he has an interest." (alterations,
23 	internal quotation marks, and citation omitted)). Thus, the State theorized at trial that
24 the monthly and lump sum payments were not Defendant's property. Instead, the
13

1 State argued that Purchasers and Defendant agreed these monies would be used to
2 pay the Chase mortgage, thereby reserving some interest in these monies in the
3 Purchasers even after the payments were submitted to Defendant. See 3 LaF ave,
4 supra, § 19.6(d), at 131-32 ("So too a building contractor who receives from the
5 landowner an advance payment on the contract and who thereafter spends the money
6 for his _own purposes and does not fulfill the contract, is not guilty of embezzlement,
7 unless the money is .earmarked to be used only for a construction purpose."
8 (footnotes omitted)); see also State v. Kovach, 2006-NMCA-122, ,-r 9, 140 N,M. 430,
9 	143 P.3d 192 (" 'Entrustment' occurs when property is committed or surrendered to
10 another with a certain confidence regarding the care, use, or disposal 	of that
11 	property." (emphasis, internal quotation marks, and citation omitted)).
12 	1. 	Lump Sum Payments
13 	{19} 	As noted, upon negotiation of the second contract, the parties agreed that
14 Purchasers would payDefendant a lump sum payment of$20,000, Purchasers would
15 	make smaller lump sum payments and continue to make monthly payments to
16 Defendant of around $500 until the lump sum payment was complete, and upon full
17 payment of the lump sum, Purchasers would assume the Chase mortgage (which had
18 	an outstanding obligation of$41,360 at the time) and their monthly payments would
19 be reduced to $317. 71. Thus, Purchasers' overall debt to Defendant would be
14

111 reduced from approximately $91,000 owed under the first contract to approximately
211 $61,000 owed under the second contract.
311 {20} 	With respect to the lump sum payment, both Ms. Samaniego and Mr. Zamora
411 testified that they were told by Defendant that the $20,000 would be used by him to
511 deal with a problem in Texas. Mr. Zamora further testified about the benefit to
611 Purchasers of paying the $20,000:
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To me, it was so that I can pay off my house sooner, [Defendant] was
giving us the option of giving him a lump sum or more money up front,
and then it would have brought my home mortgage down. It was like
90,000 [the original amount on the first contract], and I would only have
been left with whatever was on the note, which was about 43, and then
plus the 20, it would have been only 60 that I would have had to pay
for the house.
1411 (Emphasis added.) It is evident from this testimony that Mr. Zamora understood the
1511 $20,000 lump sum was consideration for Defendant lowering the total amount owed
1611 from around $90,000 to around $60,000. Nonetheless, in support of the theory that
1711 the $20,000 was instead meant to be applied toward the Chase mortgage ( as opposed
1811 to lowering the purchase amount of the Property), the State relies on Mr. Zamora's
1911 further testimony:
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Q. 	[W]hat did you use that [$6,000 tax] credit and that refund
for? What purpose?
A. 	Toward our mortgage. We gave [Defendant] the whole
6,000 that time. We gave him all our taxes. That way, we could own
our house.
15

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Q. 	Okay. 	Now, 	do 	you 	recall 	having 	any 	specific
conversation with him about the $6,000 being used to go toward the
mortgage, or was that your belief at the time?
A. 	No, I had a conversation with him, and everything was
supposed to go-everything that we were paying him was supposed to
go to the mortgage. To my understanding, that's what he was telling
me, that, [t]his is going toward your mortgage. Once you get the 20,000,
I'm going to go ahead and sign it over. Your payments will go down,
everything else.
10 (Emphasis added.) The State takes one phrase-"everything that we were paying
11 	him was supposed to go to the mortgage"-out of context to argue that the $20,000
12 	in lump sum payments were supposed to be applied to the Chase mortgage. Mr.
13 	Zamora, however, does not identify "the mortgage" as the Chase mortgage; and, as
14 indicated above, Mr. Zamora referred to the amount the Purchasers owed under the
15 	first contract as his "mortgage." When read in context and in light of all the other
16 evidence as set forth above, the inference the State seeks to draw-that Mr. Zamora's
17 reference to "the mortgage" was to the Chase mortgage-is not a reasonable one
18 	upon which the jury could rely. See Rojo, 1999-NMSC-001, 1 19; Baca, 	1997-
19 NMSC-018, 1 15. As such, there is insufficient evidence to support a finding. by the
' 	.
20 jury that Purchasers entrusted the lump sum payments they made to Defen(:iant to
21 	pay the Chase mortgage.
22 	2. 	Monthly Payments
23 	{21} 	As for the monthly payments, as noted, Purchasers understood from the
24 contracts and conversations with Defendant that their payments would be used to
16

1 pay the Chase mortgage. 	This understanding was supported by conversations
2 between Defendant and Mr. Zamora, who testified as follows:
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Q. 	Did 	you 	ever 	have 	any 	specific 	conversations 	with
[D]efendant about him taking your payments and paying the mortgage
-company, if you remember?
A. 	Yes, we did talk about it, and he said that he was going to
pay for the note, and it was included, the insurance and everything else,
because I asked about the insurance, if we need to get insurance for our
property. He said, No, that's 'included in the payment for the note for
everything else. ·
11 	Viewing the evidence in the light most favorable to the verdict, we conclude there
12 was sufficient evidence that the Purchasers' monthly payments were entrusted to
13 	Defendant to pay the Chase mortgage payments. See Kovach, 2006-NMCA-122, 1 9.
14 The State, however, presented scant evidence of conversion. The State offered the .
15 	foreclosure complaint alleging Defendant missed certain Chase mortgage payments
16 beginning in December 2012, while the Purchasers continued to make payments
17 through 	June 	2013 	totaling 	$3,600 	including 	late 	fees. 	Defendant, 	however,
18 presented uncontroverted evidence that he made payments to Chase in December
19 2012 ($430), January 2013 ($420), and March 2013 ($850), totaling $1,700. Mr.
20 Zamora testified that Defendant explained that the missed monthly payments to the
21 	Chase mortgage were used to deal with the problem in Texas. Based on the
22 foregoing, and viewing the evidence in the light most favorable to the verdict, we
17

1 conclude that the State offered proof that Defend~t converted less than $2,500, but
2 more than $500.
3 C. 	Fraudulent Intent
4 	{22} 	We next address whether the evidence is sufficient to allow a reasonable jury
5 to 	conclude that Defendant 	failed 	to 	make 	certain monthly 	Chase 	mortgage
6 payments with fraudulent intent to deprive Purchasers of their money." 'Fraudulent
7 intent' is defined as the intent to cheat or deceive and may be inferred by reasonable
8 inferences and circumstantial evidence." State v. Curry~ 2002-NMCA-092,, 11, 132
9 N.M. 602, 52 P.3d 974. "The element of intent is seldom susceptible to direct proof
10 and accordingly may be proved by circumstantial evidence." State v. Dowling, 2011-
11 	NMSC-016,, 22, 150 N.M. 110,257 P.3d 930 (alteration, internal quotation marks,
12 	and citation omitted). Intent "must be proved by the reasonable inferences shown by
13 	the evidence and the surrounding circumstances. If there are reasonable inferences
14 and sufficient circumstances then the issue of intent becomes a question of fact for
15 	the jury. It is only where there .is no reasonable inferences or sufficient surrounding
16 circumstances that we can say, as a matter of law, that ... a charge should not have
17 been presented. to the jury." State v. Ortiz, 1977-NMCA-03 6, , 9, 90 N .M. 319, 5 63
18 P .2d 113. "We do not reweigh the evidence or substitute our judgment for that of the
19 fact[-]finder _as long as there is sufficient evidence to support the verdict." State v.
18

1 Pitner, 2016-NMCA-102, 16, 385 P.3d 665 (internal quotation marks· and citation
2 omitted).
3 	{23} 	Looking at the evidence in the light most favorable to the verdict and declining
4 to substitute our own evaluation of the evidence for the jury's, we conclude that the
5 evidence 	of fraudulent intent is sufficient. A jury could reasonably · find that
6 Defendant deprived Purchasers of their Property with the requisite intent to deceive
7 or cheat. The State presented evidence that Defendant told Purchasers he was going
8 to use the money received from Purchasers' monthly payments to make the Chase
9 mortgage payments, that he did not make multiple payments on the Chase mortgage,
10 and that he did not reveal that he had used the Purchasers' monthly payments to· deal
11 	with his problem in Texas until Purchasers confronted him with the foreclosure
12 notice. 	A 	jury 	could 	reasonably 	infer 	from 	this 	evidence 	that 	Defendant
13 	surreptitiously 	used 	Purchasers' 	payments 	for 	his 	own 	purposes. 	Such 	an
'
14 interpretation of the evidence supports a finding that Defendant acted with the intent
15 	to fraudulently deprive Purchasers of the monthly payments. See State v. Archie,
16 	1997-NMCA-058, 1 10, 123 N.M. 503, 943 P.2d 537 (holding that evidence of
17 fraudulent intent was sufficient to support embezzlement conviction of the defendant
18 	who surreptitiously treated property that did not belong to him in a manner c~ntrary
19 to the defendant's promises to the owner). We recognize that it is possible to interpret
20 the evidence differently and conclude that Defendant did not have the requisite
19

1 intent. But our task is not to second-guess a reasonable interpretation or substitute
2 our own interpretation of the evidence for the jury's. See Pitner, 2016-NMCA-102,
3 1 6._ Under our highly deferential standard of review, the evidenc_e of intent is
4 sufficient.
5 	{24} 	We 	conclude 	that 	the 	evidence 	of conversion 	of Purchasers' 	monthly
6 payments 	is 	insufficient to 	support Defendant's 	second-degree 	embezzlement
7 conviction but sufficient to support fourth-degree embezzlement. Accordingly, we
8 reverse and remand with instructions for the district court to vacate Defendant's
9 conviction and enter judgment against Defendant for fourth-degree embezzlement,
10 a lesser included offense on which the jury was instructed. See State v. Villa, 2004-
11 	NMSC-031, 111, 136 N.M. 367, 98 P.3d 1017 (recognizing that an appellate court
12 that has vacated a conviction for insufficient evidence may remand for entry of
· 13 judgment on a lesser included offense only if the jury received instructions on the
14 	lesser included offerise ).
15 	CONCLUSION
16 	{25} 	For the aforementioned reasons, 	we reverse Defendant's conviction for
-17 	second~degree embezzlement and remand for the district court to enter judgment
18 against Defendant for fourth-degree embezzlement.
20

——

26} ITISSO ORDERED.

WE CONCUR:

e apes TD

We 2S

JENNIFER L. ATTREP, Judge

ZAG) Y A. IVES, Judge

M. MONICA ZAMORA, Ghief\Judge

21