State v. Candelaria

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: ________________ 3 Filing Date: April 1, 2019 4 NOS. A-1-CA-35193 and A-1-CA-35225 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 KARL CANDELARIA, 9 Defendant-Appellant, 10 and 11 STATE OF NEW MEXICO, 12 Plaintiff-Appellee, 13 v. 14 NORA CHEE, 15 Defendant-Appellant. 16 APPEALS FROM THE DISTRICT COURT OF BERNALILLO COUNTY 17 Christina P. Argyres, District Judge 18 Hector H. Balderas, Attorney General 19 Anita Carlson, Assistant Attorney General 20 Santa Fe, NM 21 for Appellee 1 Bennett J. Baur, Chief Public Defender 2 J.K. Theodosia Johnson, Assistant Appellate Defender 3 Santa Fe, NM 4 for Appellant Karl Candelaria 5 Jonathan Tsosie 6 Denver, CO 7 Ben A. Ortega 8 Albuquerque, NM 9 for Appellant Nora Chee OPINION 1 KIEHNE, Judge Pro Tempore. 2 {1} Defendants Nora Chee and Karl Candelaria each appeal from separate 3 judgments and sentences following a jury verdict finding them both guilty of fraud, 4 forgery, and conspiracy to commit fraud, and Defendant Chee guilty of 5 embezzlement, arising from a scheme in which they stole over $200,000 from the 6 franchisor of Defendant Chee’s business by writing unauthorized checks to 7 themselves. Because the two cases arise from the same facts, and Defendants raise 8 similar claims, we consolidate these cases for decision. See Rule 12-317(B) 9 NMRA. 10 {2} Defendants make the following claims on appeal: (1) that the evidence was 11 insufficient to support their convictions for forgery, because the checks and 12 signature stamp that they used to carry out their scheme were authentic, even 13 though their use of those items was unauthorized; (2) that the district court erred in 14 denying their motions to dismiss the charges against them on speedy trial grounds 15 on the stated basis that the motions were filed after the deadline for filing pretrial 16 motions in the district court’s scheduling order; (3) that the district court erred 17 when it allowed late-disclosed evidence to be used at trial and did not grant a 18 continuance to allow Defendants to further investigate it; (4) that the district court 19 erred when it allowed a substitute witness to testify as a records custodian; and (5) 1 that the district court erred in allowing a variety of unfairly prejudicial evidence to 2 be admitted at trial. Defendant Candelaria also challenges his two convictions for 3 fraud, arguing that they violate his right to be free from double jeopardy. We agree 4 that Defendant Candelaria’s two fraud convictions violate the prohibition on 5 double jeopardy, and remand to the district court with instructions that one of the 6 convictions be vacated. We affirm the district court’s judgments and sentences in 7 all other respects. 8 BACKGROUND 9 {3} Defendant Chee owned a business called Care Connections, which was a 10 franchise of Around the Clock Healthcare Services (ATC), a medical staffing 11 company based in New York. Care Connections, as a franchisee of ATC, provided 12 Registered Nurses (RNs), Licensed Practical Nurses (LPNs), and various other 13 healthcare workers to healthcare facilities in need of temporary staff. Ms. Chee 14 was also an RN. Chee’s boyfriend, Defendant Candelaria, was an employee of 15 Care Connections, where he performed administrative tasks. He was not an RN, 16 nor was he an employee of ATC. 17 {4} ATC offered a program called the “daily pay program” or “quick pay 18 program,” which allowed RNs to submit a timesheet verifying the work that they 19 had done for a healthcare facility, and be paid by ATC that same day rather than 20 having to wait until the end of the next pay period. ATC provided its franchisees, 2 1 including Defendant Chee’s franchise, with check stock and the signature stamp of 2 ATC’s Chief Financial Officer, David Kimbell, to facilitate the quick pay program. 3 ATC placed firm restrictions on Defendant Chee’s ability to use the signature 4 stamp and check stock: she was authorized to issue checks only to RNs, for 5 amounts of $500 or less, with a limit of one check per person per day. As a 6 principal of the franchise, Defendant Chee was not authorized to issue quick pay 7 checks to herself, even for services she rendered as an RN. Defendant Candelaria 8 was not entitled to receive quick pay checks, because he was not an RN, and thus 9 could not have provided any services that would have entitled him to receive a 10 quick pay check. 11 {5} Mr. Kimbell and David Savitsky, the Chief Executive Officer of ATC, 12 discovered in 2009 that Care Connections had issued a number of quick pay checks 13 to Defendants Chee and Candelaria in 2008 and 2009, in amounts totaling over 14 $200,000. No documentation established that Defendants performed any work to 15 justify the issuance of those checks. The checks were deposited into two different 16 bank accounts that Defendant Chee had opened, and the money was often quickly 17 withdrawn. Defendant Chee was the only person authorized to make withdrawals 18 from those accounts. During the relevant time period, Defendant Chee also wrote 19 checks for large amounts of money from those accounts to Defendant Candelaria. 3 1 {6} Both Defendants were arrested on June 3, 2011, and charged with multiple 2 counts of forgery ($2500 or less), contrary to NMSA 1978, Section 30-16-10(A), 3 (B) (2006); conspiracy to commit forgery, contrary to Section 30-16-10(A), (B) 4 and NMSA 1978, Section 30-28-2 (1979); and fraud (between $2,500 and 5 $20,000), contrary to NMSA 1978, Section 30-16-6 (2006); plus one count of 6 conspiracy to commit fraud (between $2,500 and $20,000), contrary to Section 307 16-6 and Section 30-28-2. The State also charged Defendant Chee with multiple 8 counts of embezzlement, contrary to NMSA 1978, Section 30-16-8 (2007), and 9 Defendant Candelaria with one count of fraud (over $20,000), contrary to Section 10 30-16-6. The district court consolidated Defendants’ cases for trial, and Defendant 11 Chee was convicted of twenty-two counts of forgery, one count of embezzlement, 12 one count of fraud, and one count of conspiracy to commit fraud. Defendant 13 Candelaria was convicted of ten counts of forgery, two counts of fraud, and one 14 count of conspiracy to commit fraud. 15 DISCUSSION 16 I. Substantial Evidence Supported Defendants’ Forgery Convictions 17 Defendants claim that substantial evidence did not support their forgery {7} 18 convictions. Specifically, Defendants contend that their conduct did not constitute 19 the crime of forgery because the quick pay checks and signature stamp used in the 4 1 scheme were genuine, and Defendant Chee endorsed the checks with her own 2 genuine signature. We disagree. 3 {8} “Although framed as a challenge to the sufficiency of the evidence, 4 Defendant[s’] argument requires us to engage in statutory interpretation to 5 determine whether the facts of this case, when viewed in the light most favorable 6 to the verdict, are legally sufficient to sustain” their convictions for forgery, and we 7 therefore apply de novo review. See State v. Barragan, 2001-NMCA-086, ¶ 24, 8 131 N.M. 281, 34 P.3d 1157, overruled on other grounds by State v. Tollardo, 9 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. 10 {9} “Forgery consists of falsely . . . making or altering any signature to, or any 11 part of, any writing purporting to have any legal efficacy with intent to injure or 12 defraud; or knowingly issuing or transferring a forged writing with intent to injure 13 or defraud[.]” Section 30-16-10(A)(1). “Forgery has been defined as a crime aimed 14 primarily at safeguarding confidence in the genuineness of documents relied upon 15 in commercial and business activity.” State v. Baca, 1997-NMSC-018, ¶ 5, 123 16 N.M. 124, 934 P.2d 1053. Forgery “requires a lie,” but “it must be a lie about the 17 document itself: the lie must relate to the genuineness of the document.” Id. 18 Indeed, as Defendants correctly observe, New Mexico case law interpreting our 19 forgery statute has long recognized a distinction between a document “which is not 20 genuine” (which can form the basis of a forgery conviction), and a genuine 5 1 document “the contents or allegations of which are false” (which cannot). Territory 2 v. Gutierrez, 1906-NMSC-003, ¶ 5, 13 N.M. 312, 84 P. 525. The Supreme Court of 3 the United States has also recognized the same historic distinction in the law of 4 forgery. See Gilbert v. United States, 370 U.S. 650, 658 (1962) (“Where the 5 ‘falsity lies in the representation of facts, not in the genuineness of execution,’ it is 6 not forgery.”); see also Moskal v. United States, 498 U.S. 103, 119 (1990) (Scalia, 7 J., dissenting) (“A forged memorandum is ‘falsely made’; a memorandum that 8 contains erroneous information is simply ‘false.’ ”). 9 {10} Attempting to seize upon that distinction, Defendants argue that the checks 10 at issue in this case merely “told lies” by, in effect, falsely representing that 11 Defendants were entitled to deposit the checks, but “were not lies in and of 12 themselves” because both the checks and the signature stamp were genuine. In 13 response, the State, while not disputing that the checks and the signature stamp 14 were genuine, argues instead that Defendants’ use of them beyond ATC’s 15 authorization to do so constitutes forgery. 16 {11} We conclude that the jury could properly find that Defendants committed 17 forgery. Although the checks themselves and the signature stamp were genuine, 18 our appellate courts have long held that a defendant may commit forgery by 19 signing another person’s name without authority and, conversely, that signing 20 another’s name with authorization is not forgery. See State v. Smith, 1927-NMSC6 1 012, ¶ 7, 32 N.M. 191, 252 P. 1003 (holding that an indictment’s allegation that the 2 defendant committed forgery by “falsely” signing another’s name sufficiently 3 alleged that the defendant signed the name without authority to do so); State v. 4 Lopez, 1969-NMCA-115, ¶¶ 13-16, 81 N.M. 107, 464 P.2d 23 (concluding that the 5 defendant was properly convicted of forgery for attempting to cash a check made 6 out to another person and endorsing that person’s name without authorization), 7 overruled on other grounds by State v. Ruffins, 1990-NMSC-035, ¶ 17, 109 N.M. 8 668, 789 P.2d 616; State v. Saavedra, 1979-NMCA-096, ¶¶ 10-12, 93 N.M. 242, 9 599 P.2d 395 (holding that the defendant was properly convicted of forgery for 10 signing account holder’s name to stolen checks); cf. Clark v. State, 1991-NMSC11 079, ¶ 12, 112 N.M. 485, 816 P.2d 1107 (“It is clear, we think, that ‘wherever 12 authority is given to sign the name of another to a writing, there can be no 13 forgery.’ ” (quoting 36 Am. Jur. 2d Forgery § 9 (1968))). 14 {12} In sum, whether a defendant signs another’s name by hand, or uses a 15 signature stamp, his or her actions tell a lie about the document itself—that it has 16 been made with the approval of the apparent signer, and is therefore genuine—and 17 does not merely tell a lie about a fact or facts stated in the document. We therefore 18 conclude that Defendants’ use of a signature stamp and the checks outside the 19 scope of their authorization to do so were acts which, when combined with the 20 required intent to injure or defraud, constituted forgery. 7 1 {13} Defendants rely on several cases in support of their contrary position, but all 2 of them are distinguishable. See State v. Carbajal, 2002-NMSC-019, 132 N.M. 3 326, 48 P.3d 64; Gutierrez, 1906-NMSC-003; and State v. Leong, 2017-NMCA4 070, 404 P.3d 9, cert. denied, 2017-NMCERT-___ (No. S-1-SC-36576, Aug. 18, 5 2017). Each of the cited cases held only that a defendant’s act of signing his own 6 name does not support a forgery conviction. See Carbajal, 2002-NMSC-019, 7 ¶¶ 18-19 (stating that the defendant did not commit forgery by signing his own 8 name to another person’s traveler’s check); Gutierrez, 1906-NMSC-003, ¶¶ 1, 4, 9 9 (holding that a notary public could not be guilty of forgery for signing his own 10 name to a certificate of acknowledgement that contained false statements); Leong, 11 2017-NMCA-070, ¶ 16 (reversing the defendant’s conviction for forgery based 12 upon the act of signing his own name to an affidavit of residency that contained a 13 false statement). 14 {14} Defendant Candelaria’s reliance on United States v. Hunt, 456 F.3d 1255 15 (10th Cir. 2006), is similarly misplaced. In that case, the defendant had check16 writing authority for his employer, but exceeded that authority by personally 17 signing checks totaling over $2 million to false payees that he controlled, and then 18 using the money for his own purposes. Id. at 1256-57. The Tenth Circuit held that 19 this misconduct did not constitute forgery because the defendant “signed each of 20 the 65 checks using his own true name,” and thus the checks “were genuinely 8 1 executed, not ‘falsely made,’ because they do not purport to be anything other than 2 checks written by an . . . agent [of the defendant’s employer].” Id. at 1263. In 3 explaining its decision, the Tenth Circuit said that “common-law forgery cases 4 consistently use the word ‘genuine’ to refer to genuineness of execution or 5 authorship, not authority to act as an agent for another[,]” id. at 1267, and 6 Defendant Candelaria concludes from this statement that his (and Defendant 7 Chee’s) lack of authority to sign the checks with Mr. Kimbell’s signature stamp 8 did not constitute forgery. But Hunt is unavailing because the defendant in that 9 case signed his own name, and thus his execution of the checks was genuine in the 10 sense that he was the true signer, albeit one acting beyond the authority that his 11 employer gave to him. Here, by contrast, Defendants used another person’s 12 signature stamp to sign the checks without authority to do so, conduct which 13 constitutes forgery under New Mexico law. The Tenth Circuit itself has recognized 14 that an agent commits forgery if he or she signs the principal’s name without 15 authority to do so. See Selvidge v. United States, 290 F.2d 894, 895 (10th Cir. 16 1961) (holding that the defendant, who, without authority, endorsed her employer’s 17 checks “as the agent of her named principal” did not commit forgery, but 18 observing that if she had signed the name of her principal without authority to do 19 so, “the crime of forgery would have been complete”). 9 1 {15} Defendant Candelaria also relies on language in Hunt indicating that because 2 banks are generally liable if they pay on a forged check, and are rarely aware of 3 private limitations on an agent’s authority, “[h]olding banks liable in cases of 4 forgery would make no sense . . . if any check signed by an agent without actual 5 authority qualified as ‘forged.’ ” 456 F.3d at 1262. Again, Defendant Candelaria’s 6 reliance on Hunt is unavailing. First, we reject any argument that Defendants 7 should escape punishment for their wrongful conduct merely because a third party 8 may ultimately be responsible for satisfying the victim’s financial loss resulting 9 from that wrongful conduct. Moreover, the quoted language appears in the portion 10 of the Hunt opinion in which the Tenth Circuit was discussing the early 11 development of the common-law crime of forgery, and is difficult to reconcile with 12 the present-day reality that banks are not automatically liable for paying out on 13 forged checks. Under New Mexico’s version of the Uniform Commercial Code, a 14 bank’s customers have a duty to examine their statements and promptly notify the 15 bank of any unauthorized payments. See NMSA 1978, § 55-4-406(c) (1992). A 16 customer’s failure to do so constitutes a defense to a claim that the bank 17 improperly paid on a forged check. See § 55-4-406(d), (e) (stating that a customer 18 who does not exercise reasonable promptness in examining statements for 19 unauthorized payments may be precluded from recovering from the bank). 10 1 {16} Finally, contrary to Defendant Chee’s assertion, State v. Deutsch, 1985- 2 NMCA-123, 103 N.M. 752, 713 P.2d 1008, does not advance her cause. Chee 3 relies on Deutsch’s statement that where an agent with a “general power” to act for 4 his principal endorses his principal’s name, that is not forgery because the 5 endorsement is fully effective, see id. ¶ 53, and argues that she did not commit 6 forgery because she had authority to act for ATC. Careful analysis reveals that the 7 language in Deutsch that Chee now relies on was non-binding dicta. The defendant 8 in Deutsch was not an agent who had a general power to sign for his principal, but 9 endorsed and cashed checks belonging to a company that he once fully controlled 10 but had since been placed in trusteeship. Id. ¶¶ 2-8. He was convicted on multiple 11 counts of forgery, and this Court reversed the forgery convictions that were based 12 on checks on which the defendant had signed his own name, but upheld the forgery 13 convictions relating to checks on which the defendant falsely signed the trustee’s 14 name. Id. ¶¶ 48, 54-56. Quite simply, Deutsch did not hold that a defendant’s act of 15 signing another person’s name without authorization cannot support a forgery 16 conviction. 17 II. 18 The District Court Did Not Err in Denying Defendants’ Speedy Trial Motions as Untimely Filed 19 Defendants claim that the district court erred by summarily denying their {17} 20 speedy trial motions on the ground that they were filed after the deadline for 21 pretrial motions set forth in the district court’s scheduling order. We disagree. 11 1 {18} We apply a de novo standard of review in deciding whether the district court 2 had the legal authority to require that a motion to dismiss on speedy trial grounds 3 be filed by a certain date before trial. See State v. Foster, 2003-NMCA-099, ¶ 6, 4 134 N.M. 224, 75 P.3d 824 (“We review de novo questions of law concerning the 5 interpretation of Supreme Court rules and the district court’s application of the law 6 to the facts of this case.”). 7 {19} The Local Rules of the Second Judicial District Court required the district 8 court to enter a scheduling order with a pretrial motions deadline. While these 9 cases were pending, our Supreme Court implemented a case management pilot 10 program, Rule LR2-400 NMRA (2014), in the Second Judicial District Court. 1 11 Because Defendants’ cases were pending on June 30, 2014, they were assigned to a 12 “special calendar.” See LR2-400(B)(1), (L). In turn, LR2-400.1 2 governed the 13 process for cases on the special calendar, but those cases were subject to the same 14 sanctions for failure to comply with time limits as those under LR2-400. See LR215 400.1(P)(4). LR2-400(G)(4) required district court judges to issue a scheduling 16 order for criminal cases on various “tracks,” and specified the period of time 1 LR2-400 was recompiled and amended as LR2-308 NMRA, effective December 31, 2016. Any reference to the rule in this opinion will be cited as LR2400, the version of the rule in effect at the time the district court made its ruling. 2 A copy of LR2-400.1 is available at https://seconddistrictcourt.nmcourts.gov/case-management-order.aspx by selecting “Adopted Rule for ‘Special Calendar.’ ” 12 1 before trial for filing pretrial motions. See LR2-400(G)(4)(a)(vi) (requiring pretrial 2 motions in track 1 cases to be filed at least fifty days before trial); LR23 400(G)(4)(b)(vi) (requiring pretrial motions in track 2 cases to be filed at least 4 sixty days before trial); and LR2-400(G)(4)(c)(vi) (requiring pretrial motions in 5 track 3 cases to be filed at least seventy days before trial). LR2-400(I) stated that 6 “[i]f a party fails to comply with any provision of this rule, including the time 7 limits imposed by the scheduling order, the court shall impose sanctions as the 8 court may deem appropriate in the circumstances[.]” 9 {20} In accord with LR2-400, the district court issued scheduling orders on 10 January 26, 2015, 3 setting an April 8, 2015 deadline for pretrial motions, and 11 setting Defendants’ cases for trial in July 2015. The scheduling order stated, in 12 bold, that “[i]f a party fails to comply with the dates outlined in the [s]cheduling 13 [o]rder, the Court shall impose sanctions. Sanctions may include, but are not 14 limited to, dismissal with o[r] without prejudice, suppression or exclusion of 15 evidence, a monetary fine imposed upon a party’s attorney, or a monetary fine 16 imposed on the attorney’s employing office with appropriate notice to the office 17 and opportunity to be heard.” As provided for under the local rule, the scheduling 18 orders also stated that the district court could grant a twenty-day extension for 3 The file stamp on the face of the orders mistakenly states that they were filed on January 26, 2014. 13 1 good cause shown as long as it would not cause the trial date to be extended. See 2 LR2-400(G)(6). 3 {21} Defendant Chee filed her speedy trial dismissal motion on June 4, 2015, and 4 Defendant Candelaria filed his counterpart motion on June 10, 2015, both well 5 after the April 8, 2015 deadline. Neither motion acknowledged that the pretrial 6 motion deadline had previously expired, nor made any attempt to show good cause 7 to support an extension. The district court, without reaching the merits of 8 Defendants’ speedy trial arguments, summarily denied the motions because they 9 were filed after the scheduling order’s pretrial motion deadline. 10 {22} As a threshold matter, we must first decide whether Defendants’ challenges 11 to the district court’s authority to apply the timeliness requirements of LR 2-400 to 12 their speedy trial motions were preserved for appellate review. The State argues 13 that Defendant Candelaria did not preserve his claim because he never challenged 14 the district court’s authority to enforce its scheduling order. Even if not preserved, 15 we exercise our discretion to address it here because the question whether speedy 16 trial motions are subject to the deadlines set forth in pretrial orders presents an 17 issue of law that is likely to recur in the Second Judicial District Court, and 18 perhaps elsewhere, making it a matter of general public interest. See Rule 1219 321(B)(2)(a) NMRA; Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, ¶ 28, 20 133 N.M. 669, 68 P.3d 909 (stating that a matter of general public interest is one 14 1 that “is likely to settle a question of law affecting the public at large or a great 2 number of cases and litigants in the near future”). As to Defendant Chee, she first 3 raised a challenge to the district court’s authority to deny her speedy trial motion as 4 untimely in her reply brief on appeal, and therefore, technically speaking, she 5 abandoned this claim. See State v. Hosteen, 1996-NMCA-084, ¶ 20, 122 N.M. 228, 6 923 P.2d 595 (stating that claims not argued in an appellant’s brief in chief are 7 “deemed abandoned”). Nevertheless, because we are addressing Defendant 8 Candelaria’s identical claim, we will address hers as well. 9 {23} We conclude that the district court had the authority, both inherent and under 10 LR2-400, to deny Defendants’ speedy trial motions as untimely under the pretrial 11 scheduling order. See State v. Le Mier, 2017-NMSC-017, ¶ 29, 394 P.3d 959 12 (stating that “our courts are encouraged to ensure the timely adjudication of cases, 13 to proactively manage their dockets, and to utilize appropriate sanctions to 14 vindicate the public’s interest in the swift administration of justice”); State v. 15 Ahasteen, 1998-NMCA-158, ¶ 28, 126 N.M. 238, 968 P.2d 328 (acknowledging 16 district courts’ inherent authority to control their dockets), abrogated on other 17 grounds by State v. Savedra, 2010-NMSC-025, ¶¶ 3, 8, 148 N.M. 301, 236 P.3d 18 20. A pretrial motion deadline serves several important purposes: it provides the 19 district court with sufficient time to review legal arguments and evidence that may 20 affect a future trial, and affords the opposing party a fair opportunity to muster 15 1 arguments and evidence in response to the motions. If district courts lacked the 2 authority to set and enforce pretrial motion deadlines, and were obligated to drop 3 everything and entertain a party’s last-minute motions, then defendants or the State 4 could wait until the eve of trial to file pretrial motions intended to disrupt the 5 proceedings. New Mexico law does not require such a result. 6 {24} Defendants do not dispute that they filed their motions to dismiss well after 7 the filing deadline for pretrial motions under the scheduling order, nor do they 8 deny that district courts generally have the authority under LR2-400 and their own 9 inherent powers to sanction parties who fail to comply with pretrial motion 10 deadlines. Nor do Defendants argue that they were unable to file their speedy trial 11 motions before the pretrial deadline passed. Instead, Defendants argue that motions 12 raising speedy trial claims are exempt from the district court’s authority to set and 13 enforce a pretrial motion deadline. 14 {25} In support of this contention, Defendant Candelaria relies on State v. Taylor, 15 2015-NMCA-012, 343 P.3d 199, for the proposition that “[t]he right to a speedy 16 trial is fundamental and is not waived even if never asserted[,]” and argues that a 17 district court must consider and rule on a speedy trial motion, even one filed in 18 violation of a properly-issued scheduling order. Id. ¶ 18 (citing State v. Garza, 19 2009-NMSC-038, ¶ 32, 146 N.M. 499, 212 P.3d 387). We disagree. Defendant 20 Candelaria takes the quoted language out of context. Taylor does not stand for the 16 1 proposition that the right to assert a speedy trial violation is somehow immune 2 from the district court’s authority to set pretrial motion deadlines. See 20153 NMCA-012, ¶ 18. In Taylor, we merely held that a defendant who stipulated to a 4 continuance for a specific purpose was not foreclosed from asserting his right to a 5 speedy trial later on in the proceedings. Id. In so holding, this Court relied on 6 Garza, in which our Supreme Court explained that even if a criminal defendant 7 does not assert the right to a speedy trial at the beginning of a case or in a vigorous 8 fashion, he or she is not foreclosed from asserting that right in the future. See 20099 NMSC-038, ¶¶ 31-34. Rather, the manner and timing of a defendant’s assertion of 10 the right to a speedy trial is simply one of several factors that a court considers 11 when analyzing a speedy trial claim. Id. 12 {26} Defendant Candelaria also relies on State v. Aragon, 1982-NMCA-173, ¶ 10, 13 99 N.M. 190, 656 P.2d 240, as supporting the notion that a speedy trial motion is 14 not subject to time limits set forth in the rules of criminal procedure or in the local 15 rules. But that case held no such thing. Rather, Aragon stands for the 16 commonsense proposition that a criminal defendant cannot be expected to file a 17 speedy trial motion before a claim materializes. In Aragon, the district court 18 refused to consider the defendant’s motion to dismiss under the so-called six19 month rule, because another, then-existing rule required that pretrial motions be 20 filed within twenty days after the defendant’s arraignment. This put the defendant 17 1 in an impossible position, because it would have required him to seek dismissal 2 under the six-month rule before a violation of that rule even occurred. This Court 3 concluded that the defendant’s dismissal motion was timely raised, reasoning that 4 “[a] defendant cannot be held to speculate at the time of arraignment or within 5 twenty days therefrom whether there may be a violation of the six[-]month rule.” 6 Id. ¶ 10. The present case is easily distinguishable because Defendants’ speedy 7 trial claims had already accrued, and could have been asserted, before the pretrial 8 motion deadline expired in April 2015. In their speedy trial motions, filed in July 9 2015, Defendants Candelaria and Chee both argued that the elapsed time from the 10 filing of the indictment exceeded two and a half years, well beyond the time period 11 necessary to trigger a speedy trial inquiry. Even if Defendants had filed their 12 dismissal motions two months earlier, by the April 2015 scheduling deadline, the 13 length of delay at that time would still have triggered an inquiry into the speedy 14 trial factors. See Garza, 2009-NMSC-038, ¶ 2 (extending “the length of delay 15 necessary to trigger the speedy trial inquiry to twelve months for simple cases, 16 fifteen months for cases of intermediate complexity, and eighteen months for 17 complex cases”). 18 {27} Defendants’ reliance on State v. Urban, 1989-NMCA-053, 108 N.M. 744, 19 779 P.2d 121, and State v. Lujan, 1985-NMCA-111, 103 N.M. 667, 712 P.2d 13, 20 also fails. Defendants cite these cases for the proposition that a motion asserting a 18 1 fundamental right to due process is not subject to pretrial motion deadlines. Again, 2 we disagree. The statements in Lujan and Urban, on which Defendants rely, are 3 terse and devoid of analysis. See Urban, 1989-NMCA-053, ¶ 24; Lujan, 19854 NMCA-111, ¶ 29. By contrast, a long line of New Mexico cases squarely holds 5 that motions asserting the denial of constitutional rights are indeed subject to 6 pretrial motion deadlines. See, e.g., State v. Rivas, 2017-NMSC-022, ¶ 58, 398 7 P.3d 299 (Nakamura, C.J., specially concurring) (recognizing that untimeliness of 8 a defendant’s motion to suppress is “a complete and sufficient basis for denying 9 the motion”); City of Santa Fe v. Marquez, 2012-NMSC-031, ¶ 28, 285 P.3d 637 10 (stating that “Rule 5-212(C) [NMRA] requires that motions to suppress be filed 11 before trial and that the district courts must adjudicate suppression issues before 12 trial, absent good cause”); State v. Vialpando, 1979-NMCA-083, ¶ 6, 93 N.M. 289, 13 599 P.2d 1086 (failing to file a motion to suppress within the time frame required 14 by our rules of criminal procedure held to provide sufficient grounds to deny the 15 motion); State v. Helker, 1975-NMCA-141, ¶ 7, 88 N.M. 650, 545 P.2d 1028 16 (stating “we hold that the rules of criminal procedure can put a time limitation on 17 the exercise of a constitutionally protected right”). We do not see, and Defendants 18 do not explain, how a broad reading of the cited language in Lujan and Urban, 19 language unaccompanied by any serious analysis, can be reconciled with this line 20 of cases. 19 1 {28} We hold that the district court properly denied Defendants’ speedy trial 2 motions as a sanction for their untimely filing. 3 III. 4 Defendant Candelaria’s Two Fraud Convictions Violate Double Jeopardy 5 Defendant Candelaria claims that his two convictions for fraud violate his {29} 6 right to be free from double jeopardy, arguing that because the two corresponding 7 jury instructions covered overlapping time periods it is possible that he was 8 convicted twice for the same conduct. We review de novo a defendant’s claim that 9 his right to be free from double jeopardy was violated. See State v. Boergadine, 10 2005-NMCA-028, ¶ 12, 137 N.M. 92, 107 P.3d 532. 11 {30} Defendant Candelaria was convicted of two counts of fraud—Count 11 12 (fraud over $2,500 but less than $20,000), relating to conduct occurring between 13 September 22, 2008, and January 22, 2009; and Count 13 (fraud over $20,000), 14 which encompassed acts from July 8, 2008 to January 22, 2009. Aside from the 15 increased dollar amount and the extended date range, the indictment and jury 16 instruction for Count 13 are identical to those relating to Count 11, and nowhere in 17 these documents does the State describe the specific conduct on which these 18 charges are based. 19 {31} Defendant Candelaria objected to the overlapping date ranges in the jury 20 instructions at trial, and the State responded that the difference between the two 21 counts was in the way that the various checks were deposited, but did not make it 20 1 clear what that difference was. The district court ruled that it would allow the date 2 ranges to overlap, but would address the issue at sentencing if it remained an issue 3 at that time. Defendant Candelaria did not raise the matter again. 4 {32} Both the New Mexico and United States Constitutions guarantee defendants 5 the right not to “be twice put in jeopardy for the same offense.” State v. 6 Armendariz, 2006-NMSC-036, ¶ 19, 140 N.M. 182, 141 P.3d 526 (internal 7 quotation marks and citations omitted), overruled on other grounds by State v. 8 Swick, 2012-NMSC-018, ¶ 31, 279 P.3d 747. The double jeopardy clause “protects 9 against multiple punishments for the same offense.” Swafford v. State, 199110 NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d 1223 (internal quotation marks and citation 11 omitted). Accordingly, the pertinent question “is whether the defendant is being 12 punished twice for the same offense.” Id. ¶ 8. 13 {33} There are two types of multiple punishment cases—unit of prosecution cases 14 and double description cases. Id. ¶¶ 8-9. This case is a unit of prosecution case, 15 because Defendant Candelaria alleges that his two convictions for fraud violate his 16 right to be free from double jeopardy. “In unit of prosecution cases, the defendant 17 is charged with multiple violations of a single statute based upon acts that may or 18 may not be considered a single course of conduct.” State v. Bello, 2017-NMCA19 049, ¶ 11, 399 P.3d 380 (internal quotation marks and citation omitted). 21 1 {34} Typically, in a unit of prosecution case, we employ a two-part test to 2 determine the Legislature’s intent. Swick, 2012-NMSC-018, ¶ 33. We “analyze the 3 statute at issue to determine whether the Legislature has defined the unit of 4 prosecution. If the unit of prosecution is clear from the language of the statute, the 5 inquiry is complete. If the unit of prosecution is not clear from the statute at issue, 6 including its wording, history, purpose, and the quantum of punishment that is 7 prescribed, courts must determine whether a defendant’s acts are separated by 8 sufficient ‘indicia of distinctness’ to justify multiple punishments.” Id. We note 9 that we have already determined that the Legislature did not clearly define the unit 10 of prosecution for fraud. See Boergadine, 2005-NMCA-028, ¶ 20.4 Accordingly, 11 the statutory definition of fraud provides no guidance in deciding whether the 12 conduct in this case constitutes two acts of fraud, or just one. 13 {35} Because the unit of prosecution for fraud has not been clearly defined by the 14 Legislature, the parties each encourage us to apply the six-factor test set forth in 15 Herron v. State, 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624, to determine 16 whether the conduct in this case contained “sufficient indicia of distinctness” to 17 justify multiple convictions. But even if we were to apply the Herron factors and 4 The Legislature amended the fraud statute, Section 30-16-6, in 2006, roughly a year after Boergadine was decided. However, the amendments did not affect Boergadine’s unit of prosecution analysis. They simply changed the dollar amounts associated with each level of punishment, and added language stating that the misappropriation or taking of a firearm valued at less than $2,500 is a fourth degree felony. See § 30-16-6. 22 1 find the acts sufficiently distinct, this would not resolve the question of whether the 2 date ranges charged in the jury instructions could have allowed the jury to convict 3 Defendant Candelaria twice for the same underlying act. 4 {36} We addressed a similar issue in State v. Cook, 2006-NMCA-110, 140 N.M. 5 356, 142 P.3d 944. In Cook, we considered whether the defendant’s two 6 convictions for tampering with evidence violated his right to be free from double 7 jeopardy where the jury instructions were undifferentiated, and the counts in the 8 indictment were identical. Id. ¶ 7. We observed that the evidence supporting the 9 two counts of tampering with evidence “was occasionally vague and equivocal,” 10 and that the parties’ closing arguments did not clarify the factual basis for each 11 count. Id. ¶¶ 11-12. We held that, even if the evidence could have supported two 12 different counts, because the jury instructions “did not make clear to the jury which 13 conduct it should consider to support each charge” the two convictions for 14 tampering with evidence violated the defendant’s double jeopardy rights. Id. ¶ 19. 15 {37} Although the two counts in Cook covered the same time frame, and here we 16 simply have an overlap of the time period at issue, we believe Cook to be 17 instructive. There, we vacated one conviction for tampering with evidence because 18 the jury could have relied on the same evidence in convicting the defendant of the 19 same crime twice. See id. ¶¶ 18-19. A similar danger is present here, because the 20 jury could have relied on evidence that fell within the overlapping time period to 23 1 convict Defendant Candelaria of both counts of fraud. Accordingly, we examine 2 the State’s closing argument to determine whether it clarified the factual basis for 3 the fraud counts. See State v. Luna, 2018-NMCA-025, ¶ 10, ___ P.3d ___ (noting 4 that we may look to the State’s closing argument for evidence of the specific 5 factual basis supporting its theory of the case), cert. denied, 2018-NMCERT-___ 6 (No. S-1-SC-36896, March 16, 2018). 7 {38} During its closing argument, the State attempted to differentiate between the 8 two counts of fraud, but at times appeared to conflate them. The State addressed 9 Count 11 as follows: 10 11 12 13 14 15 [B]asically, this fraud count, this September 22nd to January 22nd, this is referring to the behavior where [Defendants] Chee and Candelaria worked together. [They] would write checks to [Defendant] Candelaria. He would sign them over, ‘Pay to the order of Chee,’ they would be deposited into her account and then immediately withdrawn. That’s what we’re looking at. 16 17 18 19 20 So we’re looking at September through January. We know in that time there was a lot of money taken just by [Defendant Candelaria]. Here we have $15,000 in September; $4,000 in October, $2,000 in January. We have to show that they obtained over $2,500— she obtained over $2,500 as a result of this. 21 22 23 Well, just looking at the [Defendant Candelaria] check, just in October we have $4,500 deposited into her account, immediately withdrawn. So yes, we hit that $2,500 mark. 24 25 26 27 {39} Later, the State addressed Count 13 as follows: And lastly, we have fraud over $20,000. We’re looking at the time periods between July 8, 2008, and . . . January 22nd, 2009. During that time, we have all of those checks deposited into his 24 1 2 3 4 5 6 7 8 9 account. In just August we have $25,000 of checks in his name deposited into Nora Chee’s account. And we know also that on months when there weren’t any checks in his name, he was receiving payouts from her. . . . The total obtained between the two of them was $214,000. So we hit that $20,000 amount. . . . And this happened between July and January of 2009. So during that time, just in checks to him, just in checks deposited into [Defendant] Chee’s account, we have $52,000 of checks written to him, deposited into her account, endorsed by him before they’re deposited. That’s the fraud. 10 Based on the discussion above, it is not clear how the two counts are 11 distinguishable. In discussing both counts, the prosecutor referred to checks written 12 to Defendant Candelaria, which were then endorsed over to Defendant Chee and 13 deposited into one of her bank accounts. 14 {40} Because the factual basis for differentiating between Counts 11 and 13 is not 15 clear from the indictment, the jury instructions, or even the State’s closing 16 argument, we conclude that the jury could have convicted Defendant Candelaria 17 twice for the same conduct. See Cook, 2006-NMCA-110, ¶ 19. Accordingly, we 18 remand this case to the district court with instructions that the fraud count carrying 19 the lesser sentence be vacated. See State v. Montoya, 2013-NMSC-020, ¶ 55, 306 20 P.3d 426 (holding that the conviction carrying the shorter sentence must be vacated 21 when it is necessary to vacate a conviction to avoid violating the double jeopardy 22 clause). 23 IV. The District Court Did Not Abuse Its Discretion in Admitting Evidence 25 1 {41} Defendants challenge several of the district court’s evidentiary rulings. We 2 address each of them in turn. “We review the admission of evidence under an 3 abuse of discretion standard and will not reverse in the absence of a clear abuse.” 4 State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. “An abuse 5 of discretion occurs when a ruling is against logic and is clearly untenable or not 6 justified by reason.” Id. (internal quotation marks and citation omitted). 7 A. Late-Disclosed Evidence 8 Defendants argue that the district court abused its discretion in allowing the {42} 9 State to present evidence that it did not disclose until two weeks before trial, and 10 declining to give them a continuance to further investigate the evidence disclosed, 11 or sanction the State for the late-disclosed evidence. We are not persuaded. 12 {43} While preparing to be a witness at trial, Mr. Savitsky discovered a letter 13 written in 2000 by Ed Teixeira, then the executive vice president and chief 14 operating officer of ATC, advising Defendant Chee that she was not allowed to 15 write quick pay checks to herself because she was a principal of the franchise, and 16 advising her that nine quick pay checks that she had written to herself had been 17 stopped. Mr. Teixeira also discovered additional checks “tending to incriminate co18 defendant Candelaria.” He provided the evidence to the State, which turned it over 19 to defense counsel the next day. 26 1 {44} We first address Defendant Candelaria’s argument that the district court was 2 required to sanction the State for the late disclosure under LR2-400 and Rule 5-501 3 NMRA. We reject this argument because the State did not violate the rules when it 4 turned over the evidence to the defense one day after it was received from Mr. 5 Teixeira. See LR2-400(D)(3) (2014) (“The state shall have a continuing duty to 6 disclose additional information to the defendant within five (5) days of receipt of 7 such information.”). 8 {45} In deciding whether the district court abused its discretion in admitting the 9 late-disclosed evidence, or declining to grant a continuance for the defense to 10 investigate and respond to it, we consider the following factors: “(1) whether the 11 [s]tate breached some duty or intentionally deprived the defendant of evidence; (2) 12 whether the improperly non-disclosed evidence was material; (3) whether the non13 disclosure of the evidence prejudiced the defendant; and (4) whether the trial court 14 cured the failure to timely disclose the evidence.” State v. Duarte, 2007-NMCA15 012, ¶ 15, 140 N.M. 930, 149 P.3d 1027 (internal quotation marks and citation 16 omitted). “The test for materiality . . . is whether there is a reasonable probability 17 that, had the evidence been disclosed to the defense, the result of the proceeding 18 would have been different.” Id. (internal quotation marks and citation omitted). 19 {46} With regard to the letter to Defendant Chee from Ed Teixeira, we hold that 20 the district court did not abuse its discretion in admitting it into evidence and not 27 1 granting a continuance. We have already concluded that the State did not violate 2 any discovery obligation because it produced the letter to Defendants one day after 3 it was received. We do not believe that earlier disclosure of the letter would have 4 changed the result of the case, nor did it unfairly prejudice Defendants, because it 5 was cumulative of Mr. Savitsky’s testimony that Defendant Chee was aware that 6 she was not permitted to write quick pay checks to herself, and that the use of 7 quick pay checks was limited to payments for nurses in amounts of $500 or less. 8 Defendants explored this testimony during pretrial interviews with Mr. Savitsky, 9 and were thus aware of this evidence well in advance of trial, regardless of when 10 they received the letter. Moreover, the district court attempted to cure any possible 11 prejudice by granting defense counsel’s request “to talk to Mr. Savitsky for five or 12 ten minutes” about the letter before he testified at trial. After this interview, 13 Defendants did not request additional time to discuss the issue with Mr. Savitsky 14 or assert any further need to investigate the letter. Because Defendants were 15 already aware of the substance of this evidence, earlier disclosure of the letter 16 would not have changed the outcome of the trial. 17 {47} Defendant Chee argues that she was unfairly prejudiced by the late 18 disclosure of the letter, and that the district court should have granted a 19 continuance, because “[g]iven the eight[-]year gap between the letter and the 20 charging period, it is possible that ATC could have had other letters or 28 1 correspondence in its possession that were also written to Nora Chee, but which 2 may have told Chee a different and conflicting message.” A continuance, she 3 argues, would have allowed her to subpoena ATC’s records to discover whether 4 any contrary information existed. But Defendant Chee already knew, before the 5 letter was disclosed, that ATC witnesses would testify that she was aware that she 6 lacked permission to write quick pay checks to herself. Thus, she did not need the 7 letter to alert her to the potential benefit of subpoenaing ATC to discover whether 8 it had any written records that might have contradicted its position that she was not 9 allowed to write checks to herself. 10 {48} With regard to the late-disclosed checks, Defendant Chee contends that their 11 earlier disclosure might have altered her defense strategy in some unspecified way, 12 or caused her to move to sever the trial, but she does not explain why those checks 13 would have prompted her to do so. We decline to review this undeveloped claim, 14 because “[w]e will not review unclear arguments, or guess at what [a party’s] 15 arguments might be.” Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 16 137 N.M. 339, 110 P.3d 1076. Even if Defendant Chee had developed an argument 17 along these lines, we would still decline to review it because, as she admits, the 18 checks were not made part of the appellate record and, therefore, we would not be 19 able to review their content or evaluate their potential effect on Defendant Chee’s 20 defense strategy. See State v. Jim, 1988-NMCA-092, ¶ 3, 107 N.M. 779, 765 P.2d 29 1 195 (“It is [the] defendant’s burden to bring up a record sufficient for review of the 2 issues he raises on appeal.”). 3 B. Testimony of the Substitute Records Custodian 4 At trial, the district court excluded Stephanie Baca, a records custodian for {49} 5 the Metropolitan Detention Center (MDC), from testifying as a witness for the 6 State because she was present in the courtroom during the testimony of other 7 witnesses, in violation of Rule 11-615 NMRA. The district court allowed the State 8 to call a different witness, Michael Martindale, who was the civil litigation 9 administrator for MDC, and Ms. Baca’s supervisor, to testify as records custodian. 10 Defendant Chee argues that it was improper to allow this “surprise witness” to 11 authenticate a letter written by Defendant Candelaria to Defendant Chee. In the 12 letter, written while both Defendants were incarcerated at MDC, Defendant 13 Candelaria admitted to committing the crimes, and said he would testify that 14 Defendant Chee was unaware of his conduct. Defendant Chee argues that Mr. 15 Martindale did not properly authenticate the letter, and that the district court should 16 not have allowed him to testify because her attorney only had a few minutes to 17 interview Mr. Martindale before he testified. 18 {50} We reject this claim, because Defendant Chee does not explain how 19 allowing Mr. Martindale to testify prejudiced her. See State v. Griffin, 198820 NMCA-101, ¶ 11, 108 N.M. 55, 766 P.2d 315 (“Failure to disclose a witness’[s] 30 1 identity prior to trial in itself is not grounds for reversal. The objecting party must 2 show that he was prejudiced by such non-disclosure.”). Accordingly, we decline to 3 reverse the district court on this basis. See id. We also do not see, and Defendant 4 Chee does not explain, how the letter’s admission prejudiced her. After all, the 5 letter contained Defendant Candelaria’s confession to committing the crimes, and 6 essentially absolved Defendant Chee from any criminal wrongdoing. Thus, we 7 need not consider her claim that the letter was not properly authenticated. 8 C. 9 10 {51} Defendant Candelaria’s Challenge to the Admission of His Booking Sheet, Racist Tattoo, and Letter to Defendant Chee Defendant Candelaria challenges the admission of his letter to Defendant 11 Chee, in which he confessed to committing the crimes, arguing that it was not 12 properly authenticated by Mr. Martindale. Defendant Candelaria also argues that 13 the admission of his booking sheet at the MDC, and the fact that he was required to 14 show the jury his forearm tattoo, which he contends bore a racist image, exposed 15 the jury to unfairly prejudicial evidence. 31 1 1. Defendant Candelaria’s Letter to Defendant Chee 2 Mr. Martindale was called to authenticate a letter that Defendant Candelaria {52} 3 wrote to Defendant Chee, in which he confessed to the crimes, indicated that he 4 intended to “implicate David Savitsky in a plan to take the franchise” from 5 Defendant Chee and to testify that she was unaware of his conduct, and instructed 6 Defendant Chee to destroy the letter. Defendant Candelaria argues that Mr. 7 Martindale was unable to properly authenticate the letter that was admitted into 8 evidence because he did not have personal knowledge of the letter, had not seen 9 the original letter, could not identify Defendant Candelaria’s handwriting, and was 10 not able to produce a mail log for the letter. 11 {53} The envelope that contained the letter was addressed to Defendant Chee in 12 “F8-13[,]” and stated that Defendant Candelaria was in “E-7, Cell 13.” Mr. 13 Martindale testified that Defendant Chee was assigned to Unit F, Pod 8, Cell 13, 14 and that Defendant Candelaria was assigned to Unit E, Pod 7, Cell 13, the locations 15 specified in the letter. Mr. Martindale also testified about the general procedures 16 that are followed when an inmate is booked and when an inmate receives mail. He 17 testified that the mail log for the letter was never located despite efforts to find it. 18 He also testified that he had not seen the original letter, but only saw photocopies 19 of the letter and the envelope it purportedly came in. 32 1 {54} Our rules of evidence provide that evidence is authenticated if a party can 2 “produce evidence sufficient to support a finding that the item is what the 3 proponent claims it is.” Rule 11-901(A) NMRA. A party can authenticate an item 4 by providing evidence of the “appearance, contents, substance, internal patterns, or 5 other distinctive characteristics of the item, taken together with all the 6 circumstances.” Rule 11-901(B)(4). A writing can be shown to have come from a 7 specific person “by virtue of disclosing knowledge of facts known peculiarly to 8 him[.]” Fed. R. Evid. 901 advisory committee note, Example (4); see State v. Loza, 9 2016-NMCA-088, ¶ 22, 382 P.3d 963 (noting that New Mexico courts refer to 10 federal cases for guidance on authentication issues). 11 {55} We conclude that the evidence was sufficient to permit a reasonable jury to 12 believe that Defendant Candelaria wrote the letter to Defendant Chee. The letter 13 included Defendants’ cell numbers in the MDC, and Mr. Martindale confirmed 14 Defendants were indeed housed in those locations. The letter also contained facts 15 peculiarly known to Defendant Candelaria, and statements that only someone in 16 his position would make, including that Defendant Chee’s business was a 17 franchise; that David Savitsky was involved in the case; that the case involved 18 writings (as evidenced by the letter’s statement that a handwriting expert would 19 exonerate Defendant Chee); and contained several statements that he loved 20 Defendant Chee. To be sure, Defendants made arguments weighing against the 33 1 letter’s authenticity, but those went to the weight of the evidence, not its 2 admissibility. We therefore hold that it was not an abuse of discretion for the 3 district court to determine that the letter had been sufficiently authenticated. 4 D. The Booking Sheet and Tattoo 5 Defendant Candelaria argues that allowing his MDC booking sheet to be {56} 6 admitted into evidence, and requiring him to show the jury his forearm tattoo, were 7 unfairly prejudicial, and should have been excluded under Rule 11-403 NMRA 8 (“The court may exclude relevant evidence if its probative value is substantially 9 outweighed by a danger of . . . unfair prejudice.”). We disagree. 10 {57} A booking sheet is created by jail staff, based on information that arrestees 11 provide them when they are brought into the jail. The booking sheet here contained 12 Defendant Candelaria’s photograph, stated that he had a “Fu Manchu” tattoo, 13 identified Defendant Chee as his emergency contact and as his girlfriend, and 14 stated that they shared the same address. Defendant Candelaria contends that the 15 booking sheet and the tattoo only demonstrated that Defendant Candelaria knew 16 Defendant Chee, arguing “[t]he State conflates identity with proof that [Defendant] 17 Candelaria committed the crime.” Defendant’s contention misses the mark. At 18 trial, the State did not present any eyewitness testimony, or photographic or 19 videographic evidence, that Defendant Candelaria had written or cashed the quick 20 pay checks. Defendant Candelaria affirmatively relied on the absence of such 34 1 evidence at trial, and even moved for a directed verdict on that basis. Admitting the 2 booking sheet, and requiring Defendant Candelaria to show his tattoo to the jury, 3 tended to establish that he was indeed the same person who had been booked into 4 the MDC, that he was there at the same time as Defendant Chee (her booking sheet 5 was also admitted into evidence), and inferentially that he was the author of the 6 letter to Defendant Chee admitting that he committed the crimes. This evidence, 7 combined with the letter itself and Mr. Martindale’s testimony linking the letter to 8 Defendants’ location within the jail, provided a nexus between Defendant 9 Candelaria and the crimes charged. The evidence therefore had substantial 10 probative value. 11 {58} As for the other prong of the Rule 11-403 analysis, Defendant Candelaria 12 has failed to demonstrate that the probative value of this evidence was substantially 13 outweighed by a danger of unfair prejudice. Defendant Candelaria argues that the 14 booking sheet was unnecessary because he “never claimed that he was not Karl 15 Candelaria or that police did not arrest him,” but this argument misses the point. 16 Defendant Candelaria did not admit that he was the author of the incriminating 17 letter, and the booking sheet helped to show that he was its author. As for the 18 tattoo, Defendant Candelaria’s counsel argued that it depicted a “caricature of an 19 Asian man with kind of an exaggerated head dress and mustache, and very slanted 20 eyes[,]” and that it therefore could potentially offend the jury. Defendant 35 1 Candelaria, however, failed to include a photograph of the tattoo in the appellate 2 record, and we are therefore unable to fairly evaluate the potential for unfair 3 prejudice created by the tattoo. It was Defendant Candelaria’s burden to provide a 4 complete record for our review on appeal, and we decline to reverse the district 5 court’s ruling on this basis. Jim, 1988-NMCA-092, ¶ 3 (“It is [the] defendant’s 6 burden to bring up a record sufficient for review of the issues he raises on 7 appeal.”). 8 CONCLUSION 9 {59} For the foregoing reasons, we remand this case to the district court with 10 instructions to vacate Defendant Candelaria’s fraud conviction carrying the lesser 11 sentence. We affirm the district court’s judgments and sentences against Defendant 12 Candelaria and Chee in all other respects. 13 {60} IT IS SO ORDERED. 14 15 __________________________________ EMIL J. KIEHNE, Judge Pro Tempore 16 WE CONCUR: 17 ________________________________ 18 LINDA M. VANZI, Judge 19 ________________________________ 36 1 JULIE J. VARGAS, Judge 37

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