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State v. Leong

Court of Appeals of New Mexico

June 28, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
GORDON LEONG, Defendant-Appellant.


          Hector H. Balderas, Attorney General Laura E. Horton, Assistant Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender Santa Fe, NM Josephine H. Ford, Assistant Appellate Defender Albuquerque, NM for Appellant


          M. MONICA ZAMORA, Judge.

         {1} Gordon Leong (Defendant) was convicted of forgery (make or alter), contrary to NMSA 1978, Section 30-16-10(A)(1) (2006); forgery (issue or transfer), contrary to Section 30-16-10(A)(2); conspiracy to commit forgery (issue or transfer), contrary to NMSA 1978, Section 30-28-2(A) (1979); and making a false affidavit (perjury), contrary to NMSA 1978, Section 66-5-38 (1978), a fourth degree felony pursuant to NMSA 1978, Section 30-25-1(B) (2009). On appeal, Defendant raises four issues: (1) whether admission of an affidavit of residency with an affixed photocopy of Defendant's driver's license was in error when the driver's license photograph and the signature on the affidavit were not properly authenticated; (2) whether Defendant's act of signing his name on an affidavit of residency, which contained a false statement, constituted forgery (make or alter); (3) whether the district court erred in failing to include the specific language, "knowing it to be a false writing" in the instruction for forgery (issue or transfer); and (4) whether it was error to admit testimony on the conspiracy charge from two witnesses whose statements were not in furtherance of a conspiracy. We reverse in part and affirm in part.

         I. BACKGROUND

         {2} Defendant was charged with 386 counts relating to driver's license applications with the Motor Vehicle Department (MVD), and ultimately tried on 74 of those counts. The jury convicted Defendant of one count each of: (1) forgery (make or alter), (2) forgery (issue or transfer), (3) conspiracy to commit forgery (issue or transfer), and (4) perjury. All four convictions were based on events that occurred on February 16, 2010, and involved an MVD form titled "Affidavit of New Mexico Residency [(the Affidavit)] by a Relative, Friend, Employer or Other, " signed by Defendant and which included a photocopy of Defendant's driver's license in the top right corner of the affidavit, in connection with the driver's license application of Tian F. Guo.

         {3} On January 21, 2010, Defendant signed the Affidavit asserting that he was Guo's friend and that Guo lived with him at the Warren House Apartments at 7601 Lomas Boulevard Northeast, Apartment 69. The Affidavit included a copy of Defendant's driver's license. By submitting the Affidavit, Defendant was verifying that Guo was a New Mexico resident. Defendant provided the Affidavit to MVD thereby allowing Guo to obtain a New Mexico driver's license. MVD issued a driver's license for Guo based, in part, on this affidavit of residency. The onsite manager for the apartments testified that she executed a lease with Defendant and that Defendant was the only one allowed to live in that apartment between August 2009 and April 2010. At sentencing, the district court merged the convictions for forgery (make or alter) and perjury.


         A. The Affidavit

         {4} Defendant claims error in the admission of the Affidavit, arguing that it was not properly authenticated under Rule 11-901 NMRA. "We review the admission of evidence under an abuse of discretion standard and will not reverse in the absence of a clear abuse." State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72.

         {5} When authenticating an item of evidence, Rule 11-901(A) requires sufficient evidence be presented to show that the item is what the proponent claims it to be. Rule 11-901 provides various examples of what would be necessary to satisfy the requirement of authentication of evidence. Under Rule 11-901, sufficient evidence for authentication of a document can be provided by presenting the "[t]estimony of a [person] with knowledge[, ]" by submitting evidence that the document is filed in a public office as authorized by law, or by submitting evidence that the document is "a purported public record or statement . . . from the office where items of this kind are kept." Rule 11-901(B)(1), (7)(b).

         {6} The State presented testimony from Mark Lucero, a manager with MVD with fifteen years of experience. Lucero testified that the Affidavit was the type of document that is kept in the regular course of business at MVD. Defense counsel attempted to elicit testimony from Lucero that copying a driver's license was not a typical practice with MVD. In response, Lucero testified that affidavits from different offices may or may not include a copy of a license because MVD offices have different policies and procedures, but it was his belief that an agent would have verified an affiant's driver's license in some manner. Lucero explained that when a person signs an affidavit of residency for another, as in this case, the MVD employee would ask for a driver's license or other form of identification for verification. A copy of the identification document would be made, and some agents would keep the copy separate from the affidavit, while other agents would put them together. Lucero agreed that an agent would "essentially card the person" who is vouching for a driver's license applicant. The district court found that Lucero had knowledge about the practices and procedures of MVD and that he provided testimony that a driver's license copy is made when one person is vouching for the residency of another.

         {7} Defendant argues that the State should have done more to properly authenticate the Affidavit, including having an expert compare signatures and conducting a handwriting analysis. Defendant argues that Lucero worked in only one office and did not have sufficient knowledge of procedures at other MVD offices. As the State points out, however, Lucero processed 5, 000 or more applications for foreign nationals, and he had personally assisted Defendant in dealing with other driver's license applications for foreign nationals. Lucero testified that whether ...

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