       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.

                                              ____________________________________
                                              TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
M. MONICA ZAMORA, Judge




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