APPEAL FROM THE DISTRICT COURT OF DOA ANA COUNTY Grace B. Duran, District Judge
The opinion of the court was delivered by: Pickard, Judge.
Certiorari granted, No. 28,352, December 2, 2003
¶1 Defendant appeals his convictions for violations of the Water Quality Act (WQA) for discharging in violation of a permit and for causing or allowing another to violate a permit. In this opinion we address whether, in the absence of proof that the permit was in effect at the time of the violations, attempt to commit the violations is a lesser included offense, and whether this Court can remand for sentencing on the lesser included offense. We hold that attempt to commit a violation of the WQA is a lesser included offense in this instance, and we remand to the trial court for adjudication of guilt on attempt and resentencing. We next address whether portions of the WQA are unconstitutionally vague and hold that they are not under the particular facts of this case. We also address whether the trial court erred in refusing Defendant's tendered jury instructions and whether the trial court erred in admitting certain documentary evidence. We hold that the trial court did not err in refusing the tendered jury instructions and that any error in admitting the documentary evidence was harmless. We reverse Defendant's convictions and remand to the trial court for resentencing and affirm the trial court in all other respects.
¶2 Defendant was convicted by jury verdict of eight counts of violating NMSA 1978, § 74-6-10.2(A) and (B) (1993) of the WQA. Defendant was employed by Valley By-Products (VBP), a Texas rendering plant, to provide environmental expertise and consulting. VBP regularly discharged waste on a site in southern New Mexico (the Medina site) pursuant to a discharge permit (DP-854) issued in 1992. Pursuant to the WQA and Water Quality Control Commission regulations, DP-854 was to be in effect for five years and was due to expire on October 13, 1997. The actual holder of DP-854 was Henry Medina (Mr. Medina), who originally owned the land and maintained the discharge site. DP-854 was amended in 1995 to include larger quantities of discharge and to include other substances. The letter sent by the New Mexico Environment Department (NMED) approving the 1995 modification mistakenly stated that DP-854 would expire on October 16, 2000. In April 1998 NMED sent Mr. Medina two letters. The first notified him that he was not in compliance with DP-854 and listed the areas of noncompliance. The second letter, sent several days later, informed Mr. Medina of the mistake in calculating the expiration date, informed him that the correct expiration date was November 1997, and notified him that the permit had already expired. In the same letter, NMED informed Mr. Medina that he could apply to renew the permit.
¶3 Defendant was indicted for 52 violations of the WQA and was convicted of eight counts of knowingly causing or allowing another to discharge sludge from VBP in violation of DP-854 and for causing or allowing another to violate DP-854 in the failure to conduct monitoring, testing, sampling, and record keeping as required by DP-854. Defendant appeals his convictions, arguing (1) that the trial court erred in denying his motion for directed verdict because the State failed to prove an essential element of the crime, (2) that Section 74-6-10.2(B) is impermissibly vague, (3) that the trial court erred in refusing to instruct the jury on the limitations in the WQA as they pertain to DP-854, and (4) that the trial court erred in admitting certain evidence. We address each argument in order.
DENIAL OF DIRECTED VERDICT
¶4 Defendant argues that DP-854 had expired and was not in effect during the relevant period. He argues that because all of the counts had, as a predicate, the existence of DP-854, the district court erred in denying his motion for a directed verdict. But for the existence of the permit, Defendant does not contend that any other element of the offenses of which he was convicted was not adequately proved.
¶5 We review the trial court's denial of a directed verdict to determine whether substantial evidence supports the charge. State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct. App. 1993). The trial court denied Defendant's motion for directed verdict because it made the legal determination that the question of DP-854's validity was a question of fact for the jury to decide. We review the trial court's interpretation and application of the law de novo. State v. Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d 852.
¶6 Defendant was convicted of counts two through six, all of which state, in part: "[D]efendant did, in Dona Ana County, New Mexico knowingly discharge, cause or allow another to discharge an unpermitted water contaminant onto the disposal site southwest of Las Cruces, operated by Henry Medina under NMED Discharge Plan #854 contrary to Section 74-6-10.2(A)(1)." (Emphasis added.) These violations were alleged to have occurred in August 1998. Counts fifteen through seventeen, for which Defendant was also convicted, all state in part: "[D]efendant did, in Dona Ana County, New Mexico knowingly fail to monitor, sample or report, or knowingly caused or allowed another to fail to monitor, sample or report as required by permit, NMED Discharge Plan #854, issued pursuant to a state law or regulation, contrary to Section 74-6-10.2(A)(4)." (Emphasis added.) These violations were alleged to have occurred in February 1999, August 1999, and February 2000. Though Section 74-6-10.2(A)(1) differentiates between discharging without a permit if a permit is required and discharging in violation of any condition of a permit, Defendant was charged, in all counts of which he stands convicted, with violating a permit. Similarly, the jury instructions for counts two through six include as an element of the crime that Defendant "discharge[d] a water contaminant in violation of any condition of a permit[.]" The jury instructions for counts fifteen through seventeen include as elements of the crime that Defendant "knowingly failed to monitor, sample, or report, or knowingly caused or allowed another to fail to monitor, sample, or report as required by a permit[.]"
¶7 There was evidence introduced at trial concerning the validity of DP-854. The letter from NMED approving DP-854 was issued on November 13, 1992, and stated that the approval would expire on "October [sic] 13, 1997." The 1995 modification approval letter mistakenly stated that DP-854's approval would expire on October 16, 2000. However, in a letter to Mr. Medina dated April 20, 1998, NMED admitted its inadvertent mistake in earlier stating the 2000 expiration date and informed Mr. Medina that the permit had, in fact, expired on November 13, 1997. Two NMED officials testified that it had been the consistent position of NMED that DP-854 had expired in 1997.
¶8 Though there may have been confusion as to the proper expiration date of the permit due to NMED's 1995 modification letter, there is no provision in the statute or the agency regulations indicating that a modification in a discharge permit extends the actual expiration date beyond five years. NMSA 1978, § 74-6-5(H) (1999) states, "Permits shall be issued for fixed terms not to exceed five years[.]" The only exception, which may extend a new permit by two more years if initial discharging is delayed, does not apply in this case. See id. The applicable agency regulation states that "[t]he secretary shall not approve a proposed discharge plan, modification, or renewal for . . . a period longer than five years[.]" 188.8.131.5209(H)(4) NMAC. The only exception in the regulation is for the same two-year extension for new discharges, which does not apply in this case. See id. During oral argument amicus NMED confirmed that permit modification never extends a permit term.
¶9 The State concedes that DP-854 had "technically" expired, but urges us to consider DP-854 as a de facto permit because NMED implicitly instituted a grace period. The State argues that all of the parties considered that DP-854 was an active permit and acted accordingly. The State also points out that NMED took no administrative action on the permit to contravene the continued efficacy of the permit during the time of the alleged offenses.
¶10 Due process requires that the State must prove every element of an offense beyond a reasonable doubt. State v. Brown, 1996-NMSC-073, ¶ 31, 122 N.M. 724, 931 P.2d 69. We can determine no legal basis for holding that DP-854 was a valid permit at the time Defendant committed the acts for which he was convicted. Defendant, the State, and NMED all now agree that DP-854 expired on November 13, 1997, as a matter of law. Since Defendant was charged with violating a permit, and the jury was charged to consider violation of a permit as an element of the offenses, Defendant's convictions for violating the permit cannot stand. Consequently, we hold that, under the limited circumstances of this case in which the permit was technically not in effect, there was insufficient evidence to support the charges. We must therefore reverse Defendant's convictions. We reiterate that, in all other respects, apart from the existence of a permit, there was sufficient evidence of each and every element of the crimes on which the jury convicted, and Defendant does not contend otherwise.
Attempt is Lesser Included Offense
¶11 The State argues that if this Court reverses Defendant's convictions, we should remand this matter to the trial court for resentencing on the offenses of attempt to commit the violations of the statute. Defendant argues that the elements of attempt to commit the violations of the statute are different from the elements considered by the jury at trial. Defendant argues that, because the jury was not instructed on attempt as a lesser included offense, remand for resentencing would violate his rights to due process and to a trial by jury.
¶12 We first determine that the facts of this case are analogous to cases involving factual impossibilities, in which a defendant may be charged with and convicted of attempt to commit the underlying crime. See, e.g., State v. Lopez, 100 N.M. 291, 292, 669 P.2d 1086, 1087 (1983) (determining that where the defendant believed the substance he was attempting to sell was cocaine, he was guilty of attempting to traffic in a controlled substance, even though it was factually impossible to commit the crime because the substance was, in fact, not cocaine). "[W]hen a defendant does everything that is required to commit a crime but is frustrated due to the fact that completion is impossible, he can nevertheless be found guilty of attempt." Id.
¶13 There was undisputed evidence at trial showing that Defendant believed DP-854 was validly in effect during the relevant period. A VBP employee testified that she transmitted the 1995 letter from NMED, with the mistaken expiration date, to Defendant in response to his request for documentation of the permit. One witness testified that Defendant told her that the permit expired in 2000. Defendant also informed the Texas Natural Resource Conservation Commission that waste from VBP was being transported to a New Mexico site pursuant to a permit. There was no evidence that Defendant thought or believed that the permit was not in effect.
¶14 Defendant's entire defense below centered around the knowledge aspect of the charges-that Defendant did not know what VBP or Mr. Medina was doing. Defendant did not even argue to the jury the issue that the permit had expired. Defendant's attorney argued that Defendant believed the waste at issue in this case complied with DP-854. Thus, though it was impossible for Defendant to violate the terms of the permit because the permit had expired, he acted as though the permit was still in effect. Because the jury found him guilty of "everything that [was] required to commit the crime" including Defendant's belief that DP-854 was valid, Defendant was necessarily guilty of attempt to commit these offenses.
¶15 We next determine that attempt to violate Section 74-6-10.2(A) is a lesser included offense of violating the statute. "Attempt to commit a felony consists of an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission." NMSA 1978, § 30-28-1 (1963). The crime of attempt to commit a felony requires the specific intent to commit the underlying felony. State v. Hernandez, 1998-NMCA-167, ¶ 16, 126 N.M. 377, 970 P.2d 149. Defendant was found guilty of committing the violations, meaning that he, in fact, was found guilty of completing all of the acts necessary to commit the violations, but failed only because he mistakenly believed the permit to be valid.
¶16 In determining that attempt to violate the statute is a lesser included offense of violating the statute, we also look to State v. Meadors, 121 N.M. 38, 908 P.2d 731 (1995), to guide our analysis. Our Supreme Court adopted a "cognate approach" for determining whether an offense is a lesser included offense. Id. at 44, 908 P.2d at 737. The Meadors approach, used when the State requests instruction on a lesser included offense, has also been applied by this Court to review a trial court's sua sponte convicting a defendant of a lesser offense. See State v. Hernandez, 1999-NMCA-105, ¶ 26, 127 N.M. 769, 987 P.2d 1156. In both instances our courts have determined that a defendant, over his or her objection, can be convicted of a lesser included offense that was not included in the charging instrument, but that complies with the Meadors doctrine. We see no reason to use a different approach here, in determining whether to remand for resentencing on the lesser charge after Defendant has been found guilty of the greater charge following a jury trial.
¶17 The Meadors doctrine looks to the charging instrument to determine if the elements of the lesser included offense are encompassed in it (the strict elements approach) and also looks to the evidence adduced at trial to help interpret the applicability of those elements. 121 N.M. at 45, 908 P.2d at 738. "[A]n offense is a lesser-included offense only if the defendant cannot commit the greater offense in the manner described in the charging document without also committing the lesser offense." Id. Under this analysis, a defendant is provided notice of the offense he or she must defend against and given ample time to prepare a defense. Id. In Meadors, our Supreme Court found that the defendant could not have committed attempted murder by pouring gasoline on his victim and lighting him on fire without also having committed aggravated battery. Id. at 46, 908 P.2d at 739. Likewise, Defendant in this case could not have knowingly caused or knowingly allowed another to discharge a water contaminant without also attempting to do so in the event it turned out, as it did, that the permit he thought was in effect had expired. Thus, Defendant's notice of the statutory violations in the grand jury indictment necessarily included notice of attempt to violate the statute, and we determine that Defendant was not prejudiced by the failure to include attempt in the indictment or the State's failure to argue it at trial.
¶18 Defendant argues that specific intent is an element of an attempt crime, see UJI 14-2801 NMRA 2003, and the jury was never instructed to find that Defendant had to "intend to commit the crime of" knowingly causing or allowing another to discharge in violation of a permit or "intend to commit the crime of" knowingly causing or allowing another to fail to monitor, sample, or report as required by a permit. Under the Meadors cognate approach, the strict elements test advocated by Defendant is only the first step in the analysis. Using the complete approach, as discussed above, we determine that Defendant was necessarily found guilty of the lesser included offense of attempt. A charge of a completed crime logically includes a charge of an attempt to commit each of the crimes charged. Commonwealth v. Gosselin, 309 N.E.2d 884, 887 (Mass. 1974); State v. James, 655 N.W.2d 891, 897-99 (Neb. 2003); State v. Lutheran, 82 N.W.2d 507, 508 (S.D. 1957); see also In re Marlon C., 2003-NMCA-005, ¶ 12, 133 N.M. 142, 61 P.3d 851. In this case the jury found Defendant guilty of five offenses of "knowingly caus[ing], or knowingly allow[ing] another to discharge a water contaminant," and three offenses of "knowingly fail[ing] to monitor, sample, or report, or knowingly caus[ing] or allow[ing] another to fail to monitor, sample, or report." It follows, a fortiori, that the jury found that Defendant had the requisite intent to attempt to commit the offenses it found him guilty of knowingly causing. In addition, the jury was instructed that Defendant had to have acted intentionally when he committed the crime of knowingly violating the WQA. UJI 14-141 NMRA 2003.
¶19 Moreover, our Supreme Court has determined that a retrial for failure to instruct on intent is not required if the facts assure that the result surely would be the same. State v. Griffin, 116 N.M. 689, 695, 866 P.2d 1156, 1162 (1993). Because we have determined that (1) attempt to violate the statute at issue is a lesser included offense, (2) there is sufficient evidence to convict Defendant of attempt to violate the statute, and (3) the jury necessarily found Defendant guilty of the attempt under the facts of this case, we determine that a retrial is not required because the result would surely be the same. Cf. State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992) (determining that where there can be no dispute that the element was established, failure to instruct jury on that element does not offend principles of fundamental fairness and does not require reversal of conviction).
¶20 We hold that, under the facts of this case, there is sufficient evidence to find Defendant guilty of attempt to commit the offenses for which the jury found him guilty, and we remand to the trial court for resentencing based on attempt to commit the violations of the statute.
¶21 Defendant relies on State v. Haynie, 116 N.M. 746, 867 P.2d 416 (1994), for his argument that this Court cannot remand for resentencing on attempt because the jury was not instructed on attempt. In Haynie our Supreme Court found that there was insufficient evidence to sustain the defendant's conviction for first degree murder because the element of endangering the lives of others was not proved, but remanded to the trial court for resentencing for second degree murder. Id. at 748, 867 P.2d at 418. The Haynie Court determined that the defendant conceded on appeal that the evidence supported second degree murder, he argued for it below, and the jury was instructed on second degree murder, making it appropriate to remand for resentencing instead of ordering a new trial. Id. at 747-48, 867 P.2d at 417-18. Defendant argues that because the jury was not instructed on attempt, we can have no assurance that the jury necessarily found each essential element of attempt. See also United States v. Vasquez-Chan, 978 F.2d 546, 554 (9th Cir. 1992) (determining that for an appellate court to enter a judgment on a lesser offense, "the jury must have been explicitly instructed that it could find the defendant guilty of the lesser-included offense and must have been properly instructed on the elements of that offense"); Ex parte Walls, 711 So. 2d 490, 498 (Ala. 1997) (following acquittal for insufficient evidence on substantive charge, judgment cannot be entered on attempt when jury was not charged on that offense); Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (en banc) (determining that judgment cannot be entered on lesser offense unless jury was instructed on that offense). We do not agree with the rationales of these cases under the circumstances of the case at bar, where the lesser offense was necessarily found by the jury in finding the defendant guilty of the greater offense. In addition, we are at a loss to understand why instruction on a lesser offense would even be relevant when a jury finds a defendant guilty of the greater offense and thus may not reach the lesser. See UJI 14-6012 NMRA 2003 (explaining procedure to jury in deliberating greater and lesser offenses); cf. State v. Southerland, 100 N.M. 591, 595, 673 P.2d 1324, 1328 (Ct. App. 1983) (stating that when a jury does not reach issue of lesser included offense, the general rule is that any error in lesser included offense instructions is harmless).
¶22 Haynie stands for the proposition that "appellate courts have the authority to remand a case for entry of judgment on the lesser included offense and resentencing rather than retrial when the evidence does not support the offense for which the defendant was convicted but does support a lesser included offense." 116 N.M. at 748, 867 P.2d at 418. Our Supreme Court stated that "[t]he rationale for this holding is that there is no need to retry a defendant for a lesser included offense when the elements of the lesser offense necessarily were proven to a jury beyond a reasonable doubt in the course of convicting the defendant of the greater offense." Id. We have determined above that attempt to violate the statute is a lesser included offense of violating the statute under the facts of this case, and that the jury necessarily found Defendant guilty of attempt. Our determination here is not in conflict with Haynie.
¶23 Moreover, the main rationale of the cases on which Defendant relies appears to us to espouse a sporting or gaming theory of justice that is inconsistent with New Mexico law. Collier explains the reason for its rule: Were it otherwise, "the state would have all the benefits and none of the risks of its trial strategy, while the accused would have all the risks and none of the protections." Collier, 999 S.W.2d at 782 (internal quotation marks and citations omitted). However, we do not believe that risks, benefits, and strategies are the proper analysis in criminal cases. Cf. County of Los Alamos v. Tapia, 109 N.M. 736, 742, 790 P.2d 1017, 1023 (1990) (stating various definitions of the public's interest in the orderly administration of justice, including insuring that the guilty are punished after a fair trial); State v. Maes, 100 N.M. 78, 80-81, 665 P.2d 1169, 1171-72 (Ct. App. 1983) (indicating the public interest in the proper resolution of criminal cases despite the parties' concessions). In addition, we have long been committed to the rule that remedies should be tailored to the wrong suffered and should be based on a showing of particular prejudice. See In re Jade G., 2001-NMCA-058, ¶ 29, 130 N.M. 687, 30 P.3d 376; State v. Pedroncelli, 97 N.M. 190, 192-93, 637 P.2d 1245, 1247-48 (Ct. App. 1981).
¶24 Vasquez-Chan and Walls explain that the rule seeks to put the parties in the same position on appeal as they would have been at trial insofar as retrial on the lesser offense would be barred if only the greater offense was submitted to the jury and if the defendant was acquitted of that offense. Vasquez-Chan, 978 F.2d at 554; Walls, 711 So. 2d at 498. The basis of this rule is that a person may not be tried on a lesser offense once acquitted of the greater because of double jeopardy. See Meadors, 121 N.M. at 41, 908 P.2d at 734. However, in the case of an appeal, as opposed to the conclusion of a trial without appeal, there is no termination of the proceedings and no termination of jeopardy. See Sattazahn v. Pennsylvania, 537 U.S. 101, ___, 123 S. Ct. 732, 740 (2003).
¶25 Thus, when a trial concludes with a defendant's being convicted of a greater offense, we believe that the applicable rule is as set forth in Shields v. State, 722 So. 2d 584, 586-87 (Miss. 1998) (relying on Rutledge v. United States, 517 U.S. 292, 306 (1996), in finding no federal impediment to an appellate court's directing the entry of judgment for a lesser included offense when finding insufficient evidence of the greater offense as long as (1) there is a failure of proof of one element of the greater offense, (2) the evidence sustains all the elements of the lesser offense, (3) the lesser offense is included in ...