(Concurring in part and dissenting in part).
I respectfully dissent from the conclusion that the given jury instruction contains the essential elements of the crime charged.
The jury instruction given by the trial court as to the elements of a violation of NMSA1978, Section 66-8-3(D) reads in part:
For you to find the defendant guilty of holding or using an altered license place ... the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of a crime:
1. The defendant held or used a license plate which had been altered;
2. At the time he used or held the license plate, the defendant knew it had been altered[.] [Emphasis supplied.]
Section 66-8-3, entitled “False evidences of title and registration,” provides in part:
It is a felony for any person to commit any of the following acts:
A. to alter with fraudulent intent any ... registration plate ... issued by the [motor vehicle] division;
B. to forge or counterfeit any such ... date ... issued by the division;
C. to alter or falsify with fraudulent intent or to forge any assignment upon a certificate of title; or
D. to hold or use any such ... plate, knowing the same to have been so altered, forged or falsified. [Emphasis supplied.]
Defendant contends that the emphasized language of Section 66-8-3(D) requires the jury to find that the license plate had been altered with fraudulent intent. I agree, but believe the jury is additionally required to find that defendant knew the plate had been altered with fraudulent intent.
The legislature has the authority to define crimes. State v. Allen, 77 N.M. 433, 423 P.2d 867 (1967). In determining the crime that has been defined, we look to the language of the statute. State v. Pendley, 92 N.M. 658, 593 P.2d 755 (Ct.App.1979), overruled on different grounds, Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981). When the meaning of the statutory language is plain, we must give that language its intended effect. State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.1967). We also should not change the language to construe it against the accused, State v. Collins, 80 N.M. 499, 458 P.2d 225 (1969), and any doubts regarding the meaning of the language should be construed in favor of the accused. State v. Ortiz. The legislature is presumed to have used no surplus words, and where possible, effect must be given to every part of the statute. Weiland v. Vigil, 90 N.M. 148, 560 P.2d 939 (Ct.App.), cert. denied, 90 N.M. 255, 561 P.2d 1348 (1977).
These rules of statutory construction should be applied to Section 66-8-3 as follows. Subsection (A) defines a felony when a registration or license plate is altered with fraudulent intent. Subsection (B) defines a felony when a license plate is forged or counterfeited. Forgery requires proof of an intent to injure, deceive or cheat. See NMSA 1978, UJI Crim. 16.33 (Repl.Pamp.1982) and the Committee commentary. Subsection (C) defines a felony when a certificate of title is altered or falsified with fraudulent intent or when an assignment of a certificate is forged.
In examining subsection (D), I would find that it is a felony to hold or use any certificate of title, registration evidence, registration plate, validating sticker, or permit issued by the motor vehicle division, when a person knows the same to have been “so altered, forged or falsified.” The word “so” means in the same manner as had been previously stated and has reference to something previously mentioned. See Kephart v. Buddecke, 20 Colo.App. 546, 80 P. 501 (1905); Blanton v. State, 1 Wash. 265, 24 P. 439 (1890). Prior to its use in subsection (D), “altered” is conditioned by a requirement of “with fraudulent intent” in subsections (A) and (C). Subsection (B) also requires proof of an intent to defraud. The word “so” in subsection (D) modifies “altered, forged or falsified.”
In fight of the fraudulent intent requirement in subsections (A), (B) and (C), I would interpret the use of “so” in subsection (D) to mean that such document or plate has been “altered, forged or falsified” with fraudulent intent. Since there is also a “knowing” requirement in subsection (D), the essential elements of the crime defined are that the accused knew that the registration plate held or used by him had been altered, forged or falsified with fraudulent intent. The instruction given by the trial court did not require the jury to find that defendant knew the registration plate had been “so” altered or altered with fraudulent intent.
Defendant did not previously object to the jury instruction given by the trial court on this basis and raises his pertinent objection for the first time on appeal. The general rule, however, is that the failure to give a jury instruction containing the essential elements of the crime charged is jurisdictional and may be raised for the first time on appeal. State v. Foster, 87 N.M. 155, 530 P.2d 949 (Ct.App.1974). See State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977); NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 308 (Repl.Pamp.1983). Where a conviction follows from the use of a jury instruction that does not include all essential elements of the crime charged, the conviction must be reversed. See State v. Buhr, 82 N.M. 371, 482 P.2d 74 (Ct.App.1971); State v. Walsh, 81 N.M. 65, 463 P.2d 41 (Ct.App.1969).
Secondly, defendant claims that the trial court erred in not submitting to the jury his tendered instruction on his defense of mistake of fact. See NMSA 1978, UJI Crim. 41.15 (Cum.Supp.1985). In view of the above, I would not review this claim, except to note that a defendant is not ordinarily entitled to a specific instruction where the jury is adequately instructed on the matter by other instructions. State v. Venegas, 96 N.M. 61, 628 P.2d 306 (1981).
Finally, defendant contends that his conviction for violating Section 66-8-3 (D) is not supported by substantial evidence. Specifically, defendant states that the evidence was insufficient regarding the fraudulent intent of the person who altered the license plate.
The record does not contain any direct evidence indicating who altered the license plate, the reason it was altered, or whether defendant knew it had been altered with fraudulent intent, prior to his being stopped by Detective Morgan.
From the evidence recited in the majority opinion, a permissible inference may be made that the license plate had been altered with fraudulent intent because the motorcycle had not been validly registered and the May 1985 registration sticker did not apply to that motorcycle. A permissible inference may also be made that defendant knew of the alteration based upon: (1) his statement that the plate had been altered “since” his brother purchased it; (2) his repair and use of the motorcycle either in March, when the registration was due to expire, or in April, when the registration had expired; and (3) the obvious and distinct nature of the actual alteration of the license plate, which was admitted into evidence. See State v. Nation, 85 N.M. 291, 511 P.2d 777 (Ct.App.1973); State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971). These inferences, coupled with the direct evidence that defendant was in possession of an altered license plate, constitutes substantial evidence of the essential elements of the offense charged. I do not mean to imply, however, that these inferences establish the guilt of defendant beyond a reasonable doubt. That issue would have been decided by the jury if a new trial had been granted.
I would reverse the conviction of defendant and remand his case for a new trial consistent with my comments.