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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _____________

Filing Date: May 9, 2013

Docket No. 31,734

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RAMONA BRADFORD,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Ross C. Sanchez, District Judge

Gary K. King, Attorney General

Santa Fe, NM

M. Victoria Wilson, Assistant Attorney General

Albuquerque, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender

J. K. Theodosia Johnson, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

GARCIA, Judge.

{1} The specific issue before this Court is whether the State’s instructions to the grand

jury were insufficient to advise the grand jury on the essential elements of an embezzlement

charge in the absence of including the definitional instructions for the terms “fraudulent

intent” and “converted.” We hold that the grand jury was not properly instructed on the

essential elements of the embezzlement charge and reverse the district court.
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BACKGROUND

{2} Defendant was arrested for embezzlement after her employer reported to the police

that $2,719.98 was missing from the register and that Defendant was videotaped removing

money from the register, placing the money into a register bag, entering the restroom with

the bag in her hands, and exiting the restroom and the store without the bag. Following her

arrest, a grand jury indicted Defendant for one count of embezzlement. Defendant filed a

motion to dismiss the indictment and a motion for reconsideration, arguing that the grand

jury was not properly instructed on all elements of her embezzlement charge.

{3} NMSA 1978, Section 30-16-8(A) (2007) defines “embezzlement” as “a person

embezzling or converting to the person’s own use anything of value, with which the person

has been entrusted, with fraudulent intent to deprive the owner thereof.” The State instructed

the grand jury as follows:

For you to return a true bill on the charge of embezzlement you must find

probable cause as to each of the following elements: (1) the target was

entrusted with property belonging to another, which had a market value of

over $2,500 but no more than $20,000; (2) after being entrusted with the

property, the target, with fraudulent intent to deprive the owner of the

property, converted it to his own use; and (3) this happened in New Mexico

on or about the 26th day of September, 2009. 

Defendant argued that this instruction was insufficient because it failed to include uniform

jury instruction (UJI) definitions of “fraudulent intent” and “converted” for the benefit of the

jury. See UJI 14-1641 NMRA. The district court found that the State’s instruction was

sufficient to advise the jury and denied Defendant’s motion to dismiss her indictment. The

district court also denied Defendant’s motion to reconsider, but certified for interlocutory

appeal the question of whether the grand jury was sufficiently instructed on the essential

elements of embezzlement.

STANDARD OF REVIEW

{4} “A prosecutor has a duty to advise the grand jury of the essential elements of the

charges presented.” State v. Moore, 2011-NMCA-089, ¶ 8, 150 N.M. 512, 263 P.3d 289

(alteration, internal quotation marks, and citation omitted). This Court reviews de novo the

question of whether a grand jury was properly instructed on all essential elements of a

charge. Id. “[T]he remedy for a failure to advise the grand jury of the essential elements is

a dismissal of the charges without prejudice.” Id.

DISCUSSION

{5} The specific issue before this Court is whether the absence of the definitional terms

“fraudulent intent” and “converted” that are specifically included in UJI 14-1641 rendered
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the instructions given in this case insufficient to advise the grand jury of the essential

elements of Defendant’s embezzlement charge. To answer this question, we must evaluate

the current status of grand jury instructions promulgated by the Supreme Court.

{6} We first address Defendant’s primary argument. Defendant asserts that the

definitions of the two terms at issue must be provided to the grand jury because UJI 14-1641

was adopted for the essential elements of an embezzlement charge and this specific UJI

includes the definition of the two terms at issue. Although this general observation

regarding UJI 14-1641 is correct, we turn to UJI 14-8005 NMRA to resolve the question of

what instructions are properly required to be given to the grand jury.

{7} UJI 14-8005 provides a sample grand jury instruction involving the crime of burglary

and addresses the proper presentation of definitional instructions for the grand jury in both

the Use Note and committee commentary. Use Note 3 states that the grand jury “shall be

given” the additional definitional instruction of a dwelling house contained in UJI 14-1631

NMRA, if “the charge is burglary of a dwelling house[.]” The Use Note specifically directs

that this definitional instruction “shall be given” even though the elements instruction for

burglary, set forth in UJI 14-1630 NMRA, does not independently define a “dwelling

house.” Thus, the sample instruction utilized by the Supreme Court in 14-8005 requires that

a completely separate UJI definitional instruction be given in order to properly instruct the

grand jury regarding burglary of a dwelling house.

{8} In contrast to the sample provided in UJI 14-8005, the essential elements instruction

for embezzlement specifically includes both of the definitions requested by Defendant as

part of the instruction. See UJI 14-1641 (defining both “conversion” and “fraudulent intent”

in the appropriate sections of the elements instruction). Thus, the prosecution in the present

case did not need to go outside the essential elements instruction to include the definitions

that the UJI 14-8005 Use Note apparently recognizes as “shall be given” to the grand jury.

{9} The committee commentary also supports a mandate to give the definitional

instructions under UJI 14-1641. First, the commentary states that “[a]pplicable [UJIs] giving

the essential elements of an offense shall be prepared and presented by the district attorney

when the offense is being considered by the grand jury.” UJI 14-8005 committee cmt.

(emphasis added). It also states that “[i]f no uniform essential elements instruction is

available for an offense, the prosecutor shall instruct the grand jury based on the applicable

statute and shall give a copy of the statute or a written instruction derived from the statute

to the grand jury for their consideration.” Id. Finally, it states that “[a]ny other instructions,

such as definitions, which are to be given with the essential elements instruction, shall also

be prepared for the grand jury as required by law.” Id. (emphasis added). Under the

committee commentary, it is clear that the definitional instructions that are included within

the essential UJI elements instruction for a crime shall be given to the grand jury. As a

result, Defendant’s first argument appears to correctly identify the current state of the law

regarding the applicable UJIs’ that are to be given to the grand jury.
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{10} Without any citation to the UJIs or arguments that address the UJIs for grand jury

proceedings, the State asserts that the statutory elements set forth in Section 30-16-8(A) are

all that is required to be used when instructing the grand jury on a charge of embezzlement.

Other than State v. Rodarte, 2011-NMCA-067, 149 N.M. 819, 255 P.3d 397, the relevant

authorities cited by the State also predate the current version of UJI 14-8005 adopted by our

Supreme Court in 2008. Although this Court previously addressed the need for definitional

instructions to the grand jury, the case predates the current version of UJI 14-8005. See State

v. Augustin M., 2003-NMCA-065, ¶¶ 56-59, 133 N.M. 636, 68 P.3d 182 (addressing the need

for a definitional instruction on proximate cause to the grand jury). In Rodarte, this Court

only addressed the failure to give a definitional instruction during trial but the matter was

raised under a fundamental error standard of review. 2011-NMCA-067, ¶¶ 7-11 (concluding

that no fundamental error occurred when a definitional instruction on “intent to defraud” was

not given for a conviction involving the refusal to return leased property). Our Supreme

Court has not addressed the requirement for providing definitional instructions to the grand

jury under UJI 14-8005, but it has previously held that certain definitional instructions are

critical at trial, even under a fundamental error standard of review. State v. Mascarenas,

2000-NMSC-017, ¶¶ 17-21,129 N.M. 230, 4 P.3d 1221 (recognizing that fundamental error

occurred because the definitional instruction for the term “reckless disregard” was critical

in order to prevent confusion by the jury and of central importance to the defense of the

charge at trial).

{11} We determine that the State’s reliance on Rodarte is misplaced. First, no UJI existed

for the essential elements of the offense of fraudulently refusing to return leased property

under NMSA 1978, Section 30-16-40(A)(3) (2006). Rodarte, 2011-NMCA-067, ¶ 4. The

defendant in Rodarte proposed a jury instruction that included elements of the crime of fraud

and the instruction was rejected. Id. ¶ 8. On appeal, the defendant then asserted a new

argument—that it was error not to include a definitional instruction for “intent to defraud,”

a term that was part of the essential elements of the offense of fraudulently refusing to return

leased property under Section 30-16-40(A)(3). Rodarte, 2011-NMCA-067, ¶ 4. Applying

the general non-UJI approach taken from State v. Barber, 2004-NMSC-019, ¶ 19, 135 N.M.

621, 92 P.3d 633, this Court determined that a reasonable jury would not be confused or

misdirected regarding the term “intent to defraud” and what it means. Rodarte, 2011-

NMCA-067, ¶ 14. We also held that the definitional instruction for “fraudulently intended”

in UJI 14-1641 did not translate into a mandatory requirement for the imposition of an

“intent to defraud” definitional instruction under Section 30-16-40(A)(3). Rodarte, 2011-

NMCA-067, ¶ 12. This analysis is consistent with established Supreme Court precedent for

determining fundamental error where no UJIs exist. Mascarenas, 2000-NMSC-017, ¶ 20

(recognizing that only where a critical determination is involved will the failure to include

a definitional instruction be akin to a missing elements instruction and constitute

fundamental error). In the present case, a jury instruction does exist, UJI 14-1641, and the

State has been instructed to use the applicable UJI when giving the elements instruction to

the grand jury. UJI 14-8005.

{12} The unique and distinguishable circumstances in Rodarte do not convince this Court
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to deviate from the Supreme Court’s instructions in UJI 14-8005 and the accompanying

committee commentary. As a result, UJI 14-1641 was required to be given to the grand jury

in this case, including the definitional instructions for “fraudulent intent” and “conversion”

that are part of this UJI. The failure to give the grand jury the proper instruction for

embezzlement from UJI 14-1641 was error.

CONCLUSION

{13} For the foregoing reasons, we reverse the district court’s denial of Defendant’s

motion to dismiss the grand jury indictment and remand for a dismissal of the indictment

without prejudice.

{14} IT IS SO ORDERED.

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TIMOTHY L. GARCIA, Judge

WE CONCUR:

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JONATHAN B. SUTIN, Judge

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M. MONICA ZAMORA, Judge