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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 32,272

 5 MATTHEW LEWIS KIRK,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 Mark Terrence Sanchez, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Templeman and Crutchfield
13 Barry C. Crutchfield
14 Lovington, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 SUTIN, Judge.
 1        Defendant appeals his conviction for one count of larceny over $20,000. [MIO

 2 unnumbered page 1; RP 134] This Court issued a notice of proposed summary

 3 disposition proposing to affirm, and Defendant filed a timely memorandum in

 4 opposition. We considered the arguments made in Defendant’s memorandum in

 5 opposition, but are not persuaded that our proposed disposition is in error. Therefore,

 6 we affirm Defendant’s conviction.

 7        In his docketing statement and memorandum in opposition, Defendant claims

 8 that he was wrongfully convicted of larceny because the evidence was only sufficient

 9 to establish embezzlement. [MIO 1, 5-7; DS unnumbered pages 6-7] “Larceny

10 consists of the stealing of anything of value which belongs to another.” NMSA 1978,

11 § 30-16-1(A) (2006). To convict Defendant of larceny over $20,000, the State had to

12 prove beyond a reasonable doubt that Defendant “took and carried away copper wire,

13 belonging to another, which had a market value[] over $20,000[, and a]t the time he

14 took this property, [he] intended to permanently deprive the owner of it[.]” [RP 92]

15 See UJI 14-1601 NMRA; State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct.

16 App. 1986) (“Jury instructions become the law of the case against which the

17 sufficiency of the evidence is to be measured.”).

18        “Embezzlement consists of a person embezzling or converting to the person’s

19 own use anything of value, with which the person has been entrusted, with fraudulent


                                              2
 1 intent to deprive the owner thereof.”         NMSA 1978, § 30-16-8(A) (2007).

 2 “ ‘Entrustment’ occurs when property is committed or surrendered to another with a

 3 certain confidence regarding the care, use, or disposal of that property.” State v.

 4 Archie, 1997-NMCA-058, ¶ 4, 123 N.M. 503, 943 P.2d 537. The distinction between

 5 larceny and embezzlement is that only in embezzlement is the defendant entrusted

 6 with his employer’s money or property and allowed to exercise some discretion as to

 7 how that money or property will be used. See State v. Eder, 103 N.M. 211, 214-15,

 8 704 P.2d 465, 468-69 (Ct. App. 1985).

 9        As discussed in our notice, the evidence introduced at trial showed that

10 Defendant was employed by B & D Industries, Inc. and was supervised by the general

11 manager, Ed Stevens. [MIO 5; DS 1, 4] Defendant was employed as a “yard boy” to

12 perform general labor activities at a construction site on a Louisiana Energy Services

13 project. [MIO 5; DS 1, 4] Defendant collected copper scraps and wire at the

14 construction site, took the copper to Hobbs Iron and Metal, sold the copper, and gave

15 the proceeds to Mr. Stevens, who then split the proceeds with Defendant. [MIO 5-6;

16 DS 1-2, 5]

17        B&D Industries hired investigators to investigate the suspected unauthorized

18 sale of the copper scrap, and Defendant told the investigators that Mr. Stevens had

19 told him to do the collection and sale and that Mr. Stevens had told Defendant he


                                             3
 1 would split the proceeds of the sale with Defendant. [MIO 5-6; DS 1-2, 5] The

 2 investigators testified as to Defendant’s statements to them, and they testified that Mr.

 3 Stevens had told them that he had instructed Defendant to collect and sell the copper

 4 wire so that he and Defendant could split the proceeds. [MIO 5-6; DS 2, 5-6]

 5        There was no testimony that B&D Industries authorized Mr. Stevens or

 6 Defendant to take the materials belonging to B&D Industries or to sell these materials

 7 for their own benefit. [DS 4-5] Troy Beall, the president of B&D Industries, testified

 8 that B&D Industries had a policy that all wire/supplies that were not used on the

 9 construction project were to be returned to the company storage area and all scrap

10 items were to be sold and the money paid to B&D Industries. [MIO 6; DS 4-5]

11        Mr. Beall testified that only once he had authorized Mr. Stevens to sell copper

12 scrap to fund a party and for tools needed for a project. [DS 5] Defendant does not

13 suggest that there was any testimony that Mr. Stevens was authorized to sell the

14 copper scrap on more than the one occasion or any testimony that Defendant was

15 authorized to do anything with the copper scraps. To the contrary, Mr. Beall testified

16 that he hired investigators to determine if other unauthorized sales were taking place.

17 [DS 5]

18        Defendant claims that, given B&D Industries’ policy to sell the copper scrap

19 items, it was clear that Mr. Stevens, as a supervisor, had the authority to direct the


                                               4
 1 sales of such scraps. [MIO 6] We are not persuaded because there was no testimony

 2 that Mr. Stevens was ever authorized to direct the sale of the copper scraps except on

 3 one isolated occasion. [DS 5] Moreover, even if Mr. Stevens had been authorized to

 4 make a sale in the past, that authority does not warrant a conclusion as a matter of law

 5 that Defendant was in turn entrusted with the copper scraps or entrusted to exercise

 6 his discretion over the sale or other disposition of the copper scraps. [MIO 6] See

 7 Eder, 103 N.M. at 214-15, 704 P.2d at 468-69.

 8        In his memorandum in opposition, Defendant cites to a number of cases

 9 concerning defendants who were charged with embezzlement and then claims that he

10 cannot be convicted of larceny because the evidence shows that he was in lawful

11 possession of the copper at one time and, only after being entrusted with the copper

12 wiring, did he convert it to his own use. [MIO 3-4] See, e.g., State v. Pedroncelli,

13 100 N.M. 678, 679, 675 P.2d 127, 128 (1984) (affirming the defendant’s conviction

14 for one count of embezzlement over $2500 when she used her position as secretary-

15 treasurer of the union, which made her custodian of the credit union funds, to

16 negotiate numerous checks and cash withdrawal vouchers); State v. Brooks, 116 N.M.

17 309, 311-12, 862 P.2d 57, 59-60 (Ct. App. 1993) (affirming the defendant’s

18 convictions for seven counts of embezzlement when he took money from his

19 employer and noting that the defendant was the bookkeeper for his employer with


                                              5
 1 “responsibilities [that] included . . . making deposits, balancing check books, and other

 2 general financial matters”), aff’d in part, rev’d in part on other grounds, 117 N.M.

 3 751, 877 P.2d 557 (1994).

 4        We are unpersuaded. In the cases cited by Defendant, the defendants were

 5 authorized to collect and deposit money by their employers. See Pedroncelli, 100

 6 N.M. at 679, 675 P.2d at 128; Brooks, 116 N.M. at 311-12, 862 P.2d at 59-60. In this

 7 case, Defendant was a “yard boy” hired to perform general labor activities at a

 8 construction site. [MIO 5; DS 1, 4] There was no evidence that B&D Industries

 9 entrusted Defendant with selling the copper; instead, the evidence only showed that

10 Defendant’s supervisor, Mr. Stevens formulated a plan with Defendant to sell the

11 copper for their mutual illegal gain. Thus, even if Defendant is correct that all of the

12 evidence offered by the State showed that Defendant sold the copper scrap at the

13 direction of Mr. Stevens [DS 3], we are not convinced that the evidence would only

14 support a conviction for embezzlement, not larceny. [MIO 7]

15        Instead, the jury could believe that even if Defendant used the copper materials,

16 including the scraps in performing his employment duties, he was not authorized to

17 use his discretion in disposing of the scraps. See State v. Robertson, 90 N.M. 382,

18 384-85, 563 P.2d 1175, 1177-78 (Ct. App. 1977) (affirming the defendant’s

19 conviction for larceny and opining that an employee’s physical control over “property


                                               6
 1 entrusted to him by his employer is merely custody and not possession” (internal

 2 quotation marks and citation omitted)); cf. State v. Kovach, 2006-NMCA-122, ¶¶ 4,

 3 14, 140 N.M. 430, 143 P.3d 192 (holding that the defendant could not be convicted

 4 of embezzlement when she took pre-signed checks from the filing cabinet, filled them

 5 out, and completed them for her own benefit because, even though she had access to

 6 the pre-signed checks for purposes of copying and filing them, she was not entrusted

 7 to take possession or control of them). We affirm Defendant’s conviction for larceny

 8 because even though he had access to the copper scraps because of his employment,

 9 there was no evidence indicating that B&D Industries gave him the authority to use

10 his discretion to determine what should be done with the copper scraps nor was he

11 authorized to sell them. See Kovach, 2006-NMCA-122, ¶ 16 (holding that there was

12 insufficient evidence of entrustment because the defendant “had no discretion or

13 authority in regard to pre-signed checks”); Eder, 103 N.M. at 214-15, 704 P.2d at 468-

14 68 (holding that “ ‘[e]ntrust’ means to commit or surrender to another with a certain

15 confidence regarding his care, use[,] or disposal of that which has been committed or

16 surrendered” and explaining that “[a] clerk taking money from his employer’s till is

17 guilty of larceny unless he is authorized to dispose of such money at his discretion”).




                                              7
1       Therefore, for the reasons set forth in this Opinion and in our notice of proposed

2 summary disposition, we affirm Defendant’s conviction for one count of larceny over

3 $20,000.

4       IT IS SO ORDERED.


5                                         __________________________________
6                                         JONATHAN B. SUTIN, Judge



7 WE CONCUR:


8 __________________________________
9 MICHAEL D. BUSTAMANTE, Judge


10 _______________________________
11 RODERICK T. KENNEDY, Judge




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