A. Fraud consists of the intentional misappropriation or taking of anything of value that belongs to another by means of fraudulent conduct, practices or representations.
B. Whoever commits fraud when the value of the property misappropriated or taken is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor.
C. Whoever commits fraud when the value of the property misappropriated or taken is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor.
D. Whoever commits fraud when the value of the property misappropriated or taken is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.
E. Whoever commits fraud when the value of the property misappropriated or taken is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.
F. Whoever commits fraud when the value of the property misappropriated or taken exceeds twenty thousand dollars ($20,000) is guilty of a second degree felony.
G. Whoever commits fraud when the property misappropriated or taken is a firearm that is valued at less than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.
History: 1953 Comp., § 40A-16-6, enacted by Laws 1963, ch. 303, § 16-6; 1979, ch. 119, § 1; 1987, ch. 121, § 2; 2006, ch. 29, § 3.
ANNOTATIONSThe 2006 amendment, effective July 1, 2006, increased the value of property in Subsection B from $100 or less to $250 or less; increased the value of property in Subsection C from more than $100 but less than $250 to more than $250 but less than $500; increased the value of property in Subsection D from more than $250 but less than $500 to more than $500 but less than $2,500; deleted the former provision that whoever commits fraud when the property misappropriated or taken is a firearm is guilty of a fourth degree felony; and added Subsection G to provide that whoever commits fraud when the property misappropriated is a firearm with a value of less than $2,500 is guilty of a fourth degree felony.
The 1987 amendment, effective June 19, 1987, added the third paragraph, substituted "two hundred fifty dollars ($250) for "one hundred dollars ($100)" in the fourth paragraph, and substituted "is over" for "exceeds" in the sixth paragraph.
I. GENERAL CONSIDERATION.
Significance of value. — The primary elements of fraud are an intentional misappropriation or taking of anything of value. Particular values are significant only for division of gravity from a petty misdemeanor ($100 or less) to a second degree felony (over $20,000). State v. Lee, 2009-NMCA-075, 146 N.M. 605, 213 P.3d 509, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215, P.3d 42.
Intent. — Where the evidence supports a reasonable inference that defendant knew the representations he made were false, there is sufficient evidence of fraudulent intent. State v. Gardner, 1985-NMCA-084, 103 N.M. 320, 706 P.2d 862, cert. denied, 103 N.M. 287, 705 P.2d 1138.
Fraud and embezzlement are mutually exclusive, and although alternative charges are proper, a defendant cannot be convicted of both fraud and embezzlement. State v. Hornbeck, 2008-NMCA-039, 143 N.M. 562, 178 P.3d 847.
Section inapplicable to judicial proceedings. — If presentation of a false claim were made to a board constituting a court, proceedings before which would result in a judicial judgment or decree, there could be no prosecution for obtaining money for false pretenses; the remedy would be a prosecution for perjury. State v. Kelly, 1921-NMSC-073, 27 N.M. 412, 202 P. 524.
Conviction under general law improper. — Where one who sold one neat cattle, the property of another, was prosecuted under former law relating to sale of property without right, the conviction could not stand, for law relating to larceny, embezzlement or killing of domestic animals, applied specifically to that crime and should have been invoked. State v. Blevins, 1936-NMSC-052, 40 N.M. 367, 60 P.2d 208.
Jurisdiction. — Jurisdiction of prosecution for criminal false pretenses was in the county, district or state where the offense was consummated by the obtaining of the property, even though the inducing pretenses were made elsewhere and the consummation by delivery of the property was effected through the instrumentality of an innocent agent, without the personal presence of the principal. State v. Faggard, 1918-NMSC-133, 25 N.M. 76, 177 P. 748 (decided under prior law).
Effect of Worthless Check Act. — This section and the Worthless Check Act (30-36-1 to 30-36-9 NMSA 1978) prohibit different offenses, and it is inappropriate to view the Worthless Check Act as an exception to this section. State v. Higgins, 1988-NMCA-072, 107 N.M. 617, 762 P.2d 904.
Effect of Veterans' Benefits Act. — Where defendant was indicted for fraudulently obtaining reimbursements for travel to and from medical appointments which were reimbursable by the United States Department of Veterans' Affairs pursuant to the Veterans' Benefits Act, 38 U.S.C. §111, the act did not preempt the state's prosecution of defendant for violation of Section 30-16-6 NMSA 1978 or create an unavoidable conflict with state law. State v. Herrera, 2014-NMCA-003, cert. denied, 2013-NMCERT-011.
Place of crime. — Fraud of which defendant was convicted occurred in New Mexico where defendant issued drafts of an insurance company drawn on a bank in Colorado in payment of false claims. State v. Archuleta, 1970-NMCA-131, 82 N.M. 378, 482 P.2d 242, cert. denied, 82 N.M. 377, 482 P.2d 241.
Convictions violated double jeopardy. — Where defendant was charged with four counts of fraud and, in the alternative, four counts of embezzlement, and on counts 2 and 4, she was convicted of both the fraud and embezzlement alternatives, although the state is authorized to charge in the alternative, defendant's convictions for both alternatives violate her right to be free from double jeopardy. State v. Mercer, 2005-NMCA-023, 137 N.M. 36, 106 P.3d 1283, cert. denied, 2005-NMCERT-002, 137 N.M. 265, 110 P.3d 73.
Subsequent prosecutions not double jeopardy. — Dismissal of charge of passing forged instrument evidencing an indebtedness of a banking institution with intent to defraud for variance between allegation and proof, in that the instrument in question did not evidence an indebtedness of a bank, and subsequent prosecution for passing same forged bill of exchange with intent to defraud under the appropriate section, did not constitute double jeopardy as one information required proof of facts which the other did not. Owens v. Abram, 1954-NMSC-096, 58 N.M. 682, 274 P.2d 630, cert. denied, 348 U.S. 917, 75 S. Ct. 300, 99 L. Ed. 719 (1955).
Notice of lesser included offense. — Fraud over $250 is a lesser and necessarily included offense of fraud over $2,500, such that defendant was put on notice of the included offense when the state charged him with the greater offense. State v. Montoya, 1993-NMCA-097, 116 N.M. 297, 861 P.2d 978, cert. denied, 116 N.M. 364, 862 P.2d 1223.
Prosecution for both fraud and making false public voucher permitted. — The double jeopardy clause does not prohibit the prosecution of an individual under both this section and 30-23-3 NMSA 1978. State v. Ellenberger, 1981-NMSC-056, 96 N.M. 287, 629 P.2d 1216.
Because the fraud statute does not require the making of a false voucher, and the false-voucher statute does not require the misappropriation or taking of anything of value, and because fraud, unlike the crime of making false public vouchers, requires proof of the victim's reliance, defendant may be prosecuted and sentenced for violation of both statutes. State v. Whitaker, 1990-NMCA-014, 110 N.M. 486, 797 P.2d 275, cert. denied, 109 N.M. 631, 788 P.2d 931.
Alternative charging of fraud or embezzlement. — The concept of double jeopardy was not involved in charging defendant with fraud or in the alternative embezzlement since the charges were in the alternative, nor were the concepts of included offenses, same evidence or merger applicable. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Fraud and fraudulent securities practice separate offenses. — An analysis of the offense of fraud and the crime of fraudulent securities practice reveals that the two offenses have different elements; therefore, a defendant may be convicted and sentenced for both general fraud and securities fraud. State v. Ross, 1986-NMCA-015, 104 N.M. 23, 715 P.2d 471; State v. Rivera, 2009-NMCA-132, 147 N.M. 406, 223 P.3d 951, cert. denied, 2009-NMCERT-011, 147 N.M. 463, 225 P.3d 793.
Convictions under this section and 58-11-65 NMSA 1978 improper. — Conviction under this section for fraud over $2500 and conviction under 58-11-65 NMSA 1978 for false written statement for the purposes of obtaining credit union funds violated defendant's double jeopardy rights. State v. Montoya, 1993-NMCA-097, 116 N.M. 297, 861 P.2d 978, cert. denied, 116 N.M. 364, 862 P.2d 1223.
Prosecution for violation of civil statute. — The question of whether a specific contractual provision is based on a valid statute or regulation is irrelevant in a criminal case for fraud. The prosecution here was directed at the alleged criminal fraud of each of the defendants rather than a civil action to enforce the contract. Under these circumstances, defendants' convictions for fraud were not invalid. State v. Crews, 1989-NMCA-088, 110 N.M. 723, 799 P.2d 592, cert. denied, 109 N.M. 232, 784 P.2d 419.
Single larceny doctrine is inapplicable to fraud statute. State v. Boergadine, 2005-NMCA-028, 137 N.M. 92, 107 P.3d 532, cert. denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 506.
II. ELEMENTS OF OFFENSE.
Ownership of website. — Where an independent website designer created a website on the internet under contract with the defendant who was seeking to use the website for commercial purposes; the contract recognized the designer's legal ownership of the copyright to the web pages; the contract provided that upon payment to the designer, the defendant would receive a license to use the web pages; the contract never transferred any interest in the web page design or ownership of the web site to the defendant; in breach of the contract, the defendant never paid the designer; the defendant locked out the designer from access to the website by changing the password; the designer was the owner of the website and the defendant was properly convicted of criminal fraud by taking property that belonged to someone other than the defendant. State v. Kirby, 2007-NMSC-034, 141 N.M. 838, 161 P.3d 883.
Fraud is complete once misappropriation or taking occurs by means stated in statute. State v. Thoreen, 1978-NMCA-024, 91 N.M. 624, 578 P.2d 325, cert. denied, 91 N.M. 610, 577 P.2d 1256.
Completion of the act of fraud. — The act of fraud is complete at the time of the taking or misappropriation. Obtaining title is not necessary. State v. Higgins, 1988-NMCA-072, 107 N.M. 617, 762 P.2d 904.
Meaning of false pretense. — A false pretense was such a fraudulent representation of an existing or past fact, by one who knew it not to be true, as was adapted to induce the person to whom it was made to part with something of value. State v. Tanner, 1917-NMSC-017, 22 N.M. 493, 164 P. 821.
To convict defendant of fraud, state had to prove beyond a reasonable doubt that defendant, by any words or conduct, made a promise that she had no intention of keeping or misrepresented a fact to the victims, intending to deceive or cheat them, and, because of the promise or misrepresentation and the victim's reliance on it, defendant obtained money belonging to someone other than the defendant. State v. Mercer, 2005-NMCA-023, 137 N.M. 36, 106 P.3d 1283, cert. denied, 2005-NMCERT-002, 137 N.M. 265, 110 P.3d 73.
Intent to cheat and defraud required. — To do an act fraudulently is to do it with intent to cheat and defraud; therefore, because an intent to cheat and defraud is required, this is a specific intent crime and the language of this section sets forth the requisite intent. State v. Dosier, 1975-NMCA-031, 88 N.M. 32, 536 P.2d 1088, cert. denied, 88 N.M. 28, 536 P.2d 1084.
Intent to defraud essential element of crime. — Intent to cheat and defraud was an essential and constituent element of offense prescribed under Laws 1882, ch. 20, § 1 (40-21-3, 1953 Comp.) relating to obtaining property with intent to cheat or defraud. State v. Ferguson, 1952-NMSC-052, 56 N.M. 398, 244 P.2d 783.
Intent to defraud provable by inferences. — An essential element of fraud or embezzlement is intent, which is seldom provable by direct testimony, and must be proved by the reasonable inferences shown by the evidence and the surrounding circumstances. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Intent to defraud must exist at time of taking. — Contention of defendant, convicted of embezzlement under 30-16-8 NMSA 1978, that this section specifically applied to his case was without merit, where facts showed that he sold a motorcycle to complaining witness, who subsequently loaned it back to him, and thereafter although requested to do so defendant did not return the motorcycle but sold it to a third person, since there was no evidence of any fraudulent intent on the part of defendant when motorcycle was loaned to him by complaining witness. State v. Gregg, 1972-NMCA-001, 83 N.M. 397, 492 P.2d 1260, cert. denied, 83 N.M. 562, 494 P.2d 975.
Intent to defraud inferred from actions. — Where the defendant conveyed an interest in real property which she knew she did not possess, it can be reasonably inferred that the defendant intended to make false representations and intended to misappropriate the victims' money. State v. Martinez, 1979-NMCA-104, 95 N.M. 795, 626 P.2d 1292.
Separate intent to defraud for each act. — The fact that defendant specifically requested three additional cash payments for different purposes, which he accompanied by various assurances and justifications, supports the jury's finding that on each occasion, he had a separate intent to defraud. State v. Boergadine, 2005-NMCA-028, 137 N.M. 92, 107 P.3d 532, cert denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 506.
Silence may form basis for criminal misrepresentation, where the defendant has a legal duty to speak or where such silence is calculated to deceive. State v. Stettheimer, 1980-NMCA-023, 94 N.M. 149, 607 P.2d 1167.
Sufficient evidence of reliance on misrepresentation of fact. — In defendant's trial for fraud, where the jury was presented with evidence that defendant, by misrepresenting that she was the victim's girlfriend, induced the victim, an eighty year old man, to allow defendant access to his bank accounts and that he would not have allowed such access had he known either that she had married or that she never truly considered herself the victim's girlfriend, a jury could reasonably infer that the victim's willingness to allow defendant access to his accounts was grounded on the misrepresentation that she was his girlfriend, and therefore the jury's finding of reliance was supported by substantial evidence. State v. Garcia, 2016-NMSC-034, rev'g 2015-NMCA-094, 356 P.3d 45.
Reliance on misrepresentation required. — A misrepresentation for purposes of criminal fraud may include a deceptive silence or omission. The state must also present evidence sufficient to prove that because of the victim's reliance on the misrepresentation, the defendant obtained the thing of value. State v. Garcia, 2015-NMCA-094, cert. granted, 2015-NMCERT-008.
Where defendant, a woman in her fifties, misrepresented her marital status to victim, a man in his mid-eighties, and convinced victim to provide her with access to victim's bank accounts, where defendant transferred funds from victim's accounts to defendant's own bank account for personal use, and where victim testified at trial that he allowed defendant access to his bank accounts because it would be easier for defendant to help him with his personal finances, that he wanted to help defendant out with her children and family, and that he was helping defendant out because he felt sorry for her, the evidence was insufficient to sustain defendant's conviction for fraud because the state failed to carry its burden of proving beyond a reasonable doubt that victim relied on defendant's misrepresentation, that he would not have given defendant access to his bank accounts but for his impression that she was romantically available to him. State v. Garcia, 2015-NMCA-094, cert. granted, 2015-NMCERT-008.
Reliance necessary. — Under 40-21-1, 1953 Comp., relating to the obtaining of money under false pretenses, it was necessary that the prosecution establish that the victim relied on the false representation and surrendered her money to appellant on the strength of the false representation. State v. Jones, 1964-NMSC-028, 73 N.M. 459, 389 P.2d 398 (decided under prior law, statute repealed).
Actual damage to victim is not element of fraud. — Although damages are essential to recover on a civil claim for fraud, monetary loss is not a requisite of a criminal conviction. State v. McCall, 1984-NMSC-007, 101 N.M. 32, 677 P.2d 1068, rev'g 1983-NMCA-109, 101 N.M. 616, 686 P.2d 958.
Pecuniary loss by victim unnecessary. — A criminal conviction for fraud does not require the victim suffer a pecuniary loss. Sufficient evidence was presented at trial of an intentional misappropriation or taking of something of value belonging to another by means of fraudulent conduct, practices or representations. Thus, the jury could have reasonably inferred defendants intentionally misappropriated funds invested by their partners and these funds were received due to misrepresentations. State v. Clifford, 1994-NMSC-048, 117 N.M. 508, 873 P.2d 254.
Making false claim through agent. — Evidence that bank was instructed by defendant to submit items for payment established relation of principal and agent, and submission of bond for consideration and refunding necessarily constituted the false representation as to its legality and validity. State v. Kelly, 1921-NMSC-073, 27 N.M. 412, 202 P. 524.
Repayment will not mitigate completed offense. — Once a misappropriation or taking occurs by means stated in this section, the crime of fraud is complete, and repayment will not mitigate the offense. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324.
III. INDICTMENT AND INFORMATION.
Joinder appropriate. — Where the 12 counts of fraud charged were in the execution of a general fraudulent scheme, extending from September 1968 to January 1969, the method of operation in each count was identical and in each instance it was the property of the same insurance company that was misappropriated or taken, the trial court's refusal to sever was proper. State v. Archuleta, 1970-NMCA-131, 82 N.M. 378, 482 P.2d 242, cert. denied, 82 N.M. 377, 482 P.2d 241 (1971).
Severance properly denied. — The trial court did not err in denying defendant's motion to sever counts of fraud and receiving a bribe from other counts where there was no evidence the multiplicity of charges confused the jury, the multiplicity of charges were not cumulative, and the counts were predicate offenses for a racketeering charge. State v. Armijo, 1997-NMCA-080, 123 N.M. 690, 944 P.2d 919.
Alternative charging permissible. — There was nothing unfair about charging the defendant in the alternative with fraud or embezzlement, particularly since the charges arose out of the same events and carried the same penalties, and defendant was furnished with a most detailed statement of fact including the complete district attorney's file, police reports and a citation of authorities the state was relying on in support of each of the alternative charges. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Allegation of ownership. — Indictment for false pretenses was to allege ownership of the property, unless there was some legal excuse for omitting such allegation. State v. Faggard, 1918-NMSC-133, 25 N.M. 76, 177 P. 748; Territory v. Hubbell, 1906-NMSC-033, 13 N.M. 579, 86 P. 747.
Degree of crime measured by value of property obtained. — The degree of crime under this section must be measured by the value of the property obtained by the defendant as a result of the deception, rather than the value of any property received by the victim. State v. Martinez, 1979-NMCA-104, 95 N.M. 795, 626 P.2d 1292.
Information adequate. — Amended information charging defendant with unlawfully obtaining money under false pretenses with intent to defraud, which enumerated the section defining the offense and fixing the penalty, was sufficient. State v. Jones, 1964-NMSC-028, 73 N.M. 459, 389 P.2d 398.
Defective indictment. — An indictment for securing money by false pretense was fatally defective where it was alleged that the means employed were certain bogus bills of sale and a mortgage attached to a draft drawn on the defrauded party, but which failed to allege that draft was ever honored by such party, and money paid by such party on the faith of such representation. State v. Faggard, 1918-NMSC-133, 25 N.M. 76, 177 P. 748.
Information fatally defective. — Failure to allege intent to cheat and defraud in information charging accused with obtaining money by false representations rendered the information fatally defective and any judgment based thereon became a nullity. State v. Ferguson, 1952-NMSC-052, 56 N.M. 398, 244 P.2d 783.
Variance not material. — Even if there was a variance between amended information charging defendant with having obtained $500 from named individual, while the proof showed that the $500 check was drawn on the laundry and cleaner's account and signed by the named individual, one of the owners of the laundry, the variance if any was not such as would impair the substantial rights of defendant. State v. Jones, 1964-NMSC-028, 73 N.M. 459, 389 P.2d 398.
IV. EVIDENCE.
A. IN GENERAL.
Related incidents admissible. — In the case of fraud, related incidents of accused's acts are admissible to establish motive, absence of mistake or accident, common scheme or plan or the identity of the person charged with various crimes. State v. McCallum, 1975-NMCA-030, 87 N.M. 459, 535 P.2d 1085, cert. denied, 87 N.M. 457, 535 P.2d 1083.
Other acts evidencing intent. — The fact that defendant entered into many contracts which he failed to complete showed that either he was aware of the risks, that he was aware of his capabilities or that he could not have believed that he would complete the contracts, and so his proceeding to contract in spite of his awareness was evidence of his fraudulent intent. State v. McCallum, 1975-NMCA-030, 87 N.M. 459, 535 P.2d 1085, cert. denied, 87 N.M. 457, 535 P.2d 1083.
Repayment will not mitigate completed offense. — Repayment of a loan obtained by fraud so that the lender suffered no damages is not a defense against a charge of fraud under this section. State v. McCall, 1984-NMSC-007, 101 N.M. 32, 677 P.2d 1068, rev'g 1983-NMCA-109, 101 N.M. 616, 686 P.2d 958.
Failure to return money. — Testimony showing a nonreturn of the money was proper to show the intent of defendant, charged with obtaining money under false pretenses. State v. Jones, 1964-NMSC-028, 73 N.M. 459, 389 P.2d 398.
Proof of false pretenses. — False pretense could be established by conduct and acts as well as by written or spoken words. State v. Kelly, 1921-NMSC-073, 27 N.M. 412, 202 P. 524.
Confession alone inadequate proof. — Proof that a crime of fraud was committed cannot be established solely by the extrajudicial confession of the accused. State v. Dosier, 1975-NMCA-031, 88 N.M. 32, 536 P.2d 1088, cert. denied, 88 N.M. 28, 536 P.2d 1084.
Imputation of guilty knowledge. — Guilty knowledge of a brother of one accused of selling property belonging to another was not imputable to defendant. State v. Hughes, 1938-NMSC-077, 43 N.M. 109, 86 P.2d 278.
When directed verdict appropriate. — Only where there are no reasonable inferences or sufficient surrounding circumstances establishing defendant's intent can it be said, as a matter of law, that a motion for a directed verdict should have been granted or that a charge should not have been presented to the jury. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Question for jury. — It was for the jury to decide whether defendant obtained the $500 by fraud or converted to his own use the money with which he had been entrusted. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.
Whether defendant received property as loan or for investment jury question. — In a trial for fraud and embezzlement where the evidence was conflicting, whether the money and checks given to the defendant were loans, as he claimed, or were for investments, as his alleged victims claimed, was for the jury to decide. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324.
Subsequent representations admissible to show intent. — Evidence of representations made to the victims after the defendant had obtained their money, which went into specific details of alleged investments, was properly admitted in defendant's trial for fraud since the evidence explained his "investment" representations and tended to show his intent. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324.
Sufficient evidence. — Where defendant refinanced the marital home without the knowledge or consent of defendant's spouse for $32,635, there was sufficient evidence that the amount of the fraud was greater than $20,000, notwithstanding defendant's argument that because the home was community property, half of the loan proceeds belonged to defendant. State v. Turner, 2007-NMCA-105, 142 N.M. 460, 166 P.3d 1114, cert. denied, 2007-NMCERT-008, 142 N.M. 434, 166 P.3d 1088.
Where defendant presented a check for cashing at a store; the check was made payable to defendant in an amount that exceeded $250; the check was drawn on the victim's business account for labor; and the victim testified that the victim had not employed defendant or written a check to defendant in payment for labor, the evidence was sufficient to support defendant's conviction for fraud. State v. Caldwell, 2008-NMCA-049, 143 N.M. 792, 182 P.3d 775, cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.
Evidence sufficient to convict. — Testimony of a witness which is not inherently improbable because of a physical impossibility that the statements are true or the falsity of the statement is apparent without resort to inferences or deductions is sufficient to convict. State v. Sanders, 1994-NMSC-043, 117 N.M. 452, 872 P.2d 870.
Evidence is sufficient when elements of offense are established beyond a reasonable doubt by direct or circumstantial evidence. Fraudulent intent may be inferred from defendant's conduct and words.; State v. Armijo, 1997-NMCA-080, 123 N.M. 690, 944 P.2d 919.
Separate convictions for each act. — Where defendant first took a $350 check from the customer on February 11, 2002, and six days later, on February 17, 2002, customer gave defendant $300 in cash and two months later, on April 16, 2002, defendant requested more money from customer and on April 18, 2002, defendant received another $1,200 in cash, each time the defendant took money from the customer for repair of her car's transmission, he had not done any work on her car. Therefore, the lengthy stretches of time between these acts and the individual false requests for additional sums of money for parts supports three separate convictions for defendant's acts. State v. Boergadine, 2005-NMCA-028, 137 N.M. 92, 107 P.3d 532, cert denied, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 506.
B. SUFFICIENCY.
Child support payments. — Where defendant's words and conduct included his claim that he had already tendered child support payments to his ex-wife and his offer of the photocopied non-carbon records to his ex-wife's attorney to bolster that claim, the intent was to evade payment of the amount he owed. The fact that he did not succeed results only in the lessening of the conviction to attempted fraud. It does not show an absence of an intent to defraud. State v. Cearley, 2004-NMCA-079, 135 N.M. 710, 92 P.3d 1284, cert. quashed, 2005-NMCERT-003, 137 N.M. 290, 110 P.3d 506.
Misappropriation of drafts. — A charge of misappropriation of money may be established by showing that drafts or checks were misappropriated. State v. Archuleta, 1970-NMCA-131, 82 N.M. 378, 482 P.2d 242, cert. denied, 82 N.M. 377, 482 P.2d 241.
False accounts. — Where defendant made out false accounts in the name of a plumber for work purportedly done on plumbing system of courthouse and submitted them to board of county commissioners, knowing that the work had not been done and securing the proceeds for himself, evidence was sufficient to support conviction of obtaining money under false pretenses. State v. Garcia, 1953-NMSC-026, 57 N.M. 166, 256 P.2d 532.
Proof of value. — The defendant, who had opened an account, deposited a check he knew was not backed by sufficient funds, and wrote a number of checks, some of which were accepted by local businesses in exchange for merchandise, was improperly convicted of fraud. There was no testimony establishing the "false balance" ever had the values on which the jury was instructed. Proof of value is critical in a fraud prosecution. State v. Higgins, 1988-NMCA-072, 107 N.M. 617, 762 P.2d 904.
Loan. — There was sufficient evidence to support defendant's conviction of fraud; the evidence showed that defendant borrowed money from the victim after giving the victim a check in repayment of a previous debt, that the check was returned for insufficient funds, and that the borrowed money was not used for defendant's stated purpose. State v. Curry, 2002-NMCA-092, 132 N.M. 602, 52 P.3d 974, cert. denied, 132 N.M. 397, 49 P.3d 76.
Spurious claim to loan board. — False pretense could be predicated upon spurious claim presented to board of loan commissioners established to refund, pursuant to provision of Enabling Act, debts and obligations of the territory and its counties into state bonds. State v. Kelly, 1921-NMSC-073, 27 N.M. 412, 202 P. 524.
Obtaining automobile through fraud. — Evidence substantially supported a finding that defendant obtained an automobile from victim motor company by means of fraudulent conduct, practices or representations which were relied on by the company. State v. McKay, 1969-NMCA-009, 79 N.M. 797, 450 P.2d 435.
Victims' inability to specify alleged investment no help to defendant. — The fact that the victims did not know the type of investment their money was to be put into did not aid the defendant because the evidence showed that he had obtained the money by fraudulently representing that it would be invested. State v. Schifani, 1978-NMCA-080, 92 N.M. 127, 584 P.2d 174, cert. denied, 92 N.M. 180, 585 P.2d 324.
Fraudulent construction contract. — Evidence, viewed in the light most favorable to support the verdict, showing that the defendant entered into a contract with fraud victim to do certain construction work, which was not done, and that defendant even gave the victim a promissory note, evidencing an indebtedness, which was never paid, taken together with the evidence of other similar transactions, constituted substantial evidence to convict him of fraud. State v. McCallum, 1975-NMCA-030, 87 N.M. 459, 535 P.2d 1085, cert. denied, 87 N.M. 457, 535 P.2d 1083.
Defrauding noninnocent victim. — One could be convicted of obtaining money by false representations whose part in a fraudulent scheme was to sell cases of cotton, which were represented to be cigarettes, to a victim, although the victim understood he was helping to defraud either owners or insurers. State v. Foster, 1934-NMSC-083, 38 N.M. 540, 37 P.2d 541.
Fraudulent obtainment of loan may be basis for conviction of criminal fraud. State v. Stettheimer, 1980-NMCA-023, 94 N.M. 149, 607 P.2d 1167.
Fraudulent land development project. — Where defendants were charged with fraud after convincing an elderly couple to invest in a fraudulent investment scheme, evidence that defendants received over $78,000 from the victims for the purpose of investing in a land development project, that the money was instead placed in a bank account in defendants' names, that the money was disbursed by defendants for their personal benefit, and that the land project was never completed, was sufficient to show that defendants misrepresented facts to the victims, intending to deceive or cheat them, and that because of the victims' reliance on defendants' misrepresentations, defendants obtained more than $20,000. State v. Maxwell, 2016-NMCA-082, cert. denied.
Sufficient evidence of securities fraud. — Where defendants were charged with securities fraud after convincing an elderly couple to invest in a phony real estate investment project, evidence that defendants received $270,000 from the victims for the purpose of investing in a land development project and over $50,000 for the purpose of investing in commodities, that the money was instead placed in accounts solely owned by defendants, that the money was disbursed by defendants for their personal benefit, and that the money was never invested in the real estate project or in commodities, was sufficient to show that defendants sold or offered to sell a security and that in connection with the offer or sale of the security, defendants purposefully used a plan or scheme to deceive or cheat the victims. State v. Maxwell, 2016-NMCA-082, cert. denied.
Evidence sufficient to sustain conviction of attempted fraud. State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
V. INSTRUCTIONS.
Definition of fraudulent conduct unnecessary. — Absent a clearly expressed legislative intent requiring otherwise, fraudulent conduct is to be given its usual, ordinary meaning, and hence, there was no jurisdictional error in failing to define fraudulent conduct in an instruction; if defendant desired the term to be defined, he should have submitted a requested instruction. State v. Dosier, 1975-NMCA-031, 88 N.M. 32, 536 P.2d 1088, cert. denied, 88 N.M. 28, 536 P.2d 1084.
Instruction on victim's intelligence not required. — According to the majority view, statutes covering the crime of obtaining money under false pretenses were designed to protect not only the ordinarily wary and prudent, but also the ignorant, credulous and foolish; hence, trial court did not err in refusing to grant defendant's instruction to the effect that the jury had a right to consider the intelligence of the prosecuting witnesses. State v. Jones, 1964-NMSC-028, 73 N.M. 459, 389 P.2d 398.
Instruction on gambling properly denied. — Requested instruction that if victim was gambling the defendants must be found not guilty of fraud was properly denied as this section does not exempt fraud perpetrated while gambling. State v. Dosier, 1975-NMCA-031, 88 N.M. 32, 536 P.2d 1088, cert. denied, 88 N.M. 28, 536 P.2d 1084.
Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).
For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).
For annual survey of New Mexico Criminal Law, see 20 N.M.L. Rev. 265 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 32 Am. Jur. 2d False Pretenses § 1 et seq.
Telephone conversation as false pretense, 8 A.L.R. 656.
Obtaining money for goods not intended to be delivered as false pretenses, 17 A.L.R. 199.
Presentation of and attempt to establish fraudulent claim against governmental agency, 21 A.L.R. 180.
Loans and renewals thereof, false pretenses, 24 A.L.R. 397, 52 A.L.R. 1167.
Illegal or fraudulent intent of prosecuting witness or person defrauded as defense, 95 A.L.R. 1249, 128 A.L.R. 1520.
Offense of obtaining property by false pretenses predicated upon transaction involving conditional sale, 134 A.L.R. 874.
Obtaining payment by debtor on valid indebtedness by false representation as criminal false pretenses, 20 A.L.R.2d 1266.
Encumbrance: false statement as to existing encumbrance on chattel in obtaining loan or credit as criminal false pretense, 53 A.L.R.2d 1215.
Intent: admissibility to establish fraudulent purpose or intent, in prosecution for obtaining or attempting to obtain money or property by false pretenses, of evidence of similar attempt on other occasions, 78 A.L.R.2d 1359.
"Merger" clause in written contract as precluding conviction for false pretenses based on earlier oral false representations, 94 A.L.R.2d 570.
Repairs: criminal responsibility for fraud or false pretenses in connection with home repairs or installations, 99 A.L.R.2d 925.
Attempts to commit offenses of larceny by trick, confidence game, false pretenses and the like, 6 A.L.R.3d 241.
Admissibility in prosecution for obtaining money or property by fraud or false pretenses, of evidence of subsequent payments made by accused to victim, 10 A.L.R.3d 572.
Partner: embezzlement, larceny, false pretenses or allied criminal fraud by a partner, 82 A.L.R.3d 822.
Modern status of rule that crime of false pretenses cannot be predicated upon present intention not to comply with promise or statement as to future act, 19 A.L.R.4th 959.
Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 A.L.R.4th 534.
Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files, or systems, 51 A.L.R.4th 971.
Fraud actions: right to recover for mental or emotional distress, 11 A.L.R.5th 88.
Criminal liability of pharmacy or pharmacist for welfare fraud in connection with supplying prescription drugs, 16 A.L.R.5th 390.
Use of fraud or trick as "constructive breaking" for purpose of burglary or breaking and entering offense. 17 A.L.R.5th 125.
Computer fraud, 70 A.L.R.5th 647.
35 C.J.S. False Pretenses §§ 1 to 28; 37 C.J.S. Fraud § 154.