State v. Cruz

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 14:16:54 2011.10.10

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-038

Filing Date: September 14, 2011

Docket No. 32,130

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

DEBBIE CRUZ,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Robert A. Aragon, District Judge

Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM

for Petitioner

Jacqueline L. Cooper, Acting Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM

for Respondent

OPINION

BOSSON, Justice.

{1} Defendant was convicted of issuing payroll checks with insufficient funds to cover
them. Because the worthless checks were issued a week after the last day of the pay period,
the Court of Appeals reversed the convictions, relying on previous opinions of our respective
courts to conclude that the Worthless Check Act (“the modern Act”), NMSA 1978, §§
30-36-1 to -10 (1963, as amended through 1984), applies only to a “contemporaneous
exchange” and not to pre-existing or antecedent debts. We reject that distinction as
inconsistent with the clear legislative intent and purpose of the Act. We reverse and remand

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to the Court of Appeals for their consideration of the remaining issues raised, but not
decided, on appeal.

BACKGROUND

{2} Debbie Cruz (“Defendant”) was the owner and president of DGM Construction.
DGM employed Benjamin Kallestewa, Vicki Kallestewa, and Leo Erachio (collectively, “the
workers”) to work on a construction project on the Zuni Pueblo in 2002. Defendant signed
all the company’s paychecks, which were delivered to the workers by the site foreman one
week after the end of the pay period. In June 2002, the workers cashed four paychecks at
a local trading post. The trading post owner deposited the checks at his bank, but the bank
returned all four checks for insufficient funds. The trading post owner made three additional
attempts to deposit the checks before the bank returned the checks for a final time, noting
that the “account [had] closed.”

{3} Defendant was charged with four counts of issuing worthless checks, pursuant to
Section 30-36-4 of the Act. Convicted on each count, Defendant argued on appeal, among
other issues, the lack of sufficient evidence to prove that she had issued a check “in exchange
for anything of value” as set forth in Section 30-36-4 of the Act. State v. Cruz,
2010-NMCA-011, ¶¶ 1, 26, 40, 147 N.M. 753, 228 P.3d 1173. The Court of Appeals agreed,
reversing Defendant’s convictions on that ground. Id. ¶¶ 1, 41.

{4} Relying on some hoary case law from this Court and a more recent case of its own,
the Court of Appeals concluded that the statutory “exchange” for which the worthless checks
issued—in this case an exchange of labor for wages—had to be “contemporaneous,”
meaning the checks had to issue at or near the end of the pay period. Id. ¶¶ 31, 33, 38.
Because these paychecks were delivered one week after the end of the pay period, they were
in payment of an “antecedent or pre-existing debt” not covered by the Act. Id. ¶¶ 32-33.
Thus, if we were to follow the logic of the Court of Appeals, the Act would never apply to
most payroll situations in which a delay of a week or two between the end of the pay period
and receipt of a paycheck is common. We granted certiorari to determine whether the Court
of Appeals correctly interpreted the Act and whether the case law on which it relied has any
continuing vitality. State v. Cruz, 2010-NMCERT-001, 147 N.M. 674, 227 P.3d 1056.

DISCUSSION

{5} As phrased in the petition for certiorari, we consider whether the Act’s prohibition
against issuing worthless checks “in exchange for anything of value” applies to checks
issued for labor, often “paid within the traditional two weeks required for processing
payroll.” “We review issues of statutory and constitutional interpretation de novo.” State
v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M. 102, 163 P.3d 489.

{6} This is the first time we apply the Act in its modern form, as it has been
approximately ninety years since we last spoke on this subject. We considered predecessor

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versions of the Act in the early part of the last century. Since our last relevant review, see
generally State v. Davis, 26 N.M. 523, 194 P. 882 (1921) (applying the 1919 Act), it has
been amended or replaced in its entirety nine times. See 1929 N.M. Laws, ch. 126, § 1; 1937
N.M. Laws, ch. 142, §§ 1-5; 1953 N.M. Laws, ch. 132, § 1; 1959 N.M. Laws, ch. 113, §§
1-2; 1961 N.M. Laws, ch. 206, § 1; 1963 N.M. Laws, ch. 315, §§ 1-10; 1965 N.M. Laws, ch.
114, §§ 1-2; 1979 N.M. Laws, ch. 8, §§ 1-2; 1984 N.M. Laws, ch. 110, §§ 1-2. Thus, our
Davis, 26 N.M. 523, 194 P. 882, opinion from 1921—the most recent relevant case from this
Court—considered a substantially different statute.

{7} We begin our analysis by looking at the language of the modern Act, for the most
part enacted in 1963, and the plain meaning of its text. See State v. Moya, 2007-NMSC-027,
¶ 6, 141 N.M. 817, 161 P.3d 862 (“[O]ur primary goal is to effectuate the Legislature's
intent. We do so by looking first to the words the Legislature chose and the plain meaning
of the language.”). We will then turn to prior iterations of the Act and the case law
interpreting them and determine whether such a comparison can shed any light on the Act
in its present form.

{8} Defendant was convicted of violating Section 30-36-4 of the Act, which states:

It is unlawful for a person to issue in exchange for anything of value,
with intent to defraud, any check, draft or order for payment of money upon
any bank or other depository, knowing at the time of the issuing that the
offender has insufficient funds in or credit with the bank or depository for the
payment of such check, draft or order in full upon its presentation.

(Emphasis added.) This appeal turns on the meaning of the phrase in Section 30-36-4 “in
exchange for anything of value.”

{9} The Act defines a “thing of value” to include “money, property, services, goods and
wares; and lodging.” Section 30-36-2(D) (emphasis added). The Act does not define
“exchange,” see § 30-36-2 (defining only “check,” “person,” “draw,” “thing of value,” and
“credit”), and so we must interpret the word by applying its ordinary meaning. See Oldham
v. Oldham, 2011-NMSC-007, ¶ 10, 149 N.M. 215, 247 P.3d 736 (“‘[W]e look first to the
plain language of the statute, giving the words their ordinary meaning, unless the Legislature
indicates a different one was intended.’” (quoting Marbob Energy Corp. v. N.M. Oil
Conservation Comm'n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135)). The ordinary
definition of “exchange” includes a broad construction, “[t]o give in return for something
received,” and more specific interpretations, such as “trade” and “[t]o give and receive
reciprocally,” among others. The American Heritage Dictionary 619 (4th ed. 2000).
Without any further guidance as to the definition of “exchange,” we may appropriately apply
any of the ordinary definitions.

{10} Thus, under a straightforward, textual reading of the Act, its language would appear
to embrace the present dispute arising from paychecks issued in exchange for labor. Recall

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that the Act specifically includes “services” within the definition of “thing of value,” which
can only mean that our Legislature intended to cover situations in which workers are paid
by check for their “services.” As we will address later, the text of the Act does not condition
its protections on whether payment is a “contemporaneous” transaction; the word never
appears in the Act. Nor does the Act say that worthless checks issued in exchange for
“antecedent or pre-existing debts” are excluded; those words are equally absent from the text
of the Act.

{11} Our textual reading of the operative portion of the Act comports with its stated
purpose as well. See Lion's Gate Water v. D'Antonio, 2009-NMSC-057, ¶ 23, 147 N.M. 523,
226 P.3d 622 (“Statutes are enacted as a whole, and consequently each section or part should
be construed in connection with every other part or section, giving effect to each, and each
provision is to be reconciled in a manner that is consistent and sensible so as ‘to produce a
harmonious whole.’” (quoting Key v. Chrysler Motors Corp., 121 N.M. 764, 769, 918 P.2d
350, 355 (1996)). In the words of our Legislature, the purpose of the Act is

to remedy the evil of giving checks on a bank without first providing funds
in or credit with the depository on which they are made or drawn to pay or
satisfy the same, which tends to create the circulation of worthless checks on
banks, bad banking, check kiting and mischief to trade and commerce.

Section 30-36-3.

{12} Applying the Act to worthless payroll checks, with or without a lapse of time
between payment and work performed, presumably furthers the purposes of the Act.
Worthless payroll checks, no less than any others, go to the heart of the “evil of giving
checks on a bank without first providing funds in or credit with the depository.” Id.
Worthless checks issued for payroll have the same deleterious effect on the banking system
and represent a “mischief to trade and commerce,” id., whether or not the bad checks issue
contemporaneously with the last work day, or a week or two later. Thus, reading a strict
requirement of “contemporaneous” into the Act’s exchange, would appear to undercut the
laudable policy goals of the Act.

{13} Perhaps most persuasive is that if we were to exclude common payroll transactions
from the Act, then we would narrow significantly the scope of the Act. Indeed, we would
render the inclusion of “services” within the definition of “thing of value” practically
meaningless. Thus, even aside from the text of the Act, if we focus on an interpretation that
fosters, not obstructs, the beneficial goals of the Act, then the direction taken by our Court
of Appeals gives rise to considerable doubt.

The Court of Appeals Opinion

{14} How did our Court of Appeals come to such a different conclusion? First, we must
acknowledge some of our case law that, quite frankly, begs for clarification. See Cruz,

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2010-NMCA-011, ¶ 31 (discussing State v. Platt, 114 N.M. 721, 722-23, 845 P.2d 815,
816-17 (Ct. App. 1992); Davis, 26 N.M. at 525, 194 P. at 882; State v. Tanner, 22 N.M. 493,
495, 164 P. 821, 822 (1917)). The Court of Appeals cited to Platt, Davis, and Tanner,
concluding that “[i]t is well established that a check given in payment for an antecedent or
pre-existing debt is not covered by the . . . Act.” Cruz, 2010-NMCA-011, ¶ 31. The Court
of Appeals was not wrong in terms of its reading of history.

{15} However, the Court of Appeals was not asked to consider, and it did not consider,
whether the 1963 repeal of the Act and its replacement with a substantially different statute
might affect the persuasive authority of such distant precedent. The Court of Appeals
validated its reasoning by looking to case law from other states, interpreting other statutes.
See Cruz, 2010-NMCA-011, ¶¶ 34-37. Because the confusion, at least initially, lies in our
own case law, it falls on this Court to address the matter squarely.

{16} To understand our early precedent, it is helpful to recall that when the crime of
issuing worthless checks was first enacted, see NMSA 1915, § 1560 (1907), it was intended
to supplement existing crimes that were familiar to the courts of the time. See Bad Check
Laws, 44 Harv. L. Rev. 451, 451 (1931) (“In [that] era of expanding credit and the
widespread use of checks as a substitute for currency, it [was] necessary to have some
effective legal deterrent for the issuance of checks drawn without funds.” (footnote
omitted)). Existing common-law crimes, such as “cheating,” had been thought too narrow
because they often focused on the manner in which the bad check was used (e.g., to obtain
property falsely) and not on the issuance of the worthless check itself. See id. at 451-52
(“The common law crime of cheating ha[d] never been deemed broad enough to embrace
this evil. Under the early English statute making it a crime to obtain property by false
pretenses, however, such [a check issued without sufficient funds] was sometimes regarded
as a form of false pretense, and it’s [sic] issuance indictable.” (footnotes omitted)). In other
words, over time and with the growing use of checks in commerce, the evil had become the
issuance of a check without sufficient funds, regardless of how property might have been
obtained by virtue of that check. See id. at 452-53. Therefore, specific statutes were created
to address the problem of bad checks. See id. at 453.

{17} New Mexico seems to have followed the national trend. The first version of the Act
appeared in New Mexico statutes alongside crimes such as “Cheating and false pretenses”
and “Cheating and false representations” in the “Cheats—Frauds—False Pretenses” article.
See generally NMSA 1915, §§ 1551 to -72 (1854, as amended through 1909).1 Notably, the

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“Cheats and false pretenses” required that a person

designedly, by any false pretense, or by any privy or false
token, and with intent to defraud, obtain from any other
person any money or goods, wares, merchandise or other
property, or shall obtain with such intent the signature of any

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cheating crimes required that a person obtain or attempt to obtain property, or a forgery in
the case of “Cheats and false pretenses,” through the use of some form of trickery or
deception. See §§ 1551 to -53 (emphasis omitted). In addition, “Cheating and false
representation” could be accomplished by obtaining property through the use of a check.
In comparison, the original Act required that a person “wilfully or with intent to defraud
draw or utter any order or check or other instrument, for moneys, on any bank . . . knowing
that such order or check or other instrument will not be paid or honored upon presentation
thereof.” See § 1560 (1907). Unlike the cheats crimes, the original Act did not explicitly
require that things of value be obtained by use of a check; nor did it make any reference to
false pretense. Id. Instead, the original Act concentrated more on the issuer’s state of mind
when the check issued, regardless of the manner in which the check was used.

{18} Tanner, written in 1917, is the only case from this Court to mention the original
version of the Act. 22 N.M. at 495, 164 P.822. Although the Court of Appeals cites Tanner
to support the existence of a pre-existing debt rule, see Cruz, 2010-NMCA-011, ¶ 31, on
closer scrutiny we cannot agree. Tanner only mentions the original Act in passing, stating
that the Act and the earlier mentioned cheating crimes were all properly indicted. Tanner,
22 N.M. at 495, 164 P. at 822 (“There are three sections of the Code of 1915, which are
applicable to the facts of the case, . . . [Sections] 1551, 1553, and 1560.”). The Court’s legal
inquiry in Tanner, however, was whether the facts alleged in the indictment—a worthless
check in return for the delivery of cattle—were sufficient to show false pretenses. The
crimes “Cheats and false pretenses” and “Cheats and false representations” each mention
“false pretenses,” explicitly as a violation of those crimes. See id. at 495 n.1, 164 P. at 822
n.1. The original Act did not. While it is possible that the justices on the Tanner Court also
thought false pretenses was an element of the original Act, Tanner does not actually say that.

person to any written instrument, the false making whereof
would be punishable as forgery . . .

Section 1551 (1897).

“Cheats and false representations” required that a person

with intent to cheat and defraud, shall obtain, or attempt to
obtain, from any other person or persons any money property
or valuable thing whatever by means or by use of any trick or
deception or false or fraudulent representation or statement or
pretense, or by any other means or instrument or device
commonly called the “confidence game,” or by means or by
use of any false or bogus check, or by any other printed,
written or engraved instrument or spurious coin or metal.

Section 1553 (1897).

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In our judgment, therefore, Tanner is a weak reed upon which the Court of Appeals relied
for the proposition that the modern Act requires false pretenses in obtaining property and
does not apply to pre-existing debts. The Tanner opinion is simply not clear.

{19} During this same “era of expanding credit and the widespread use of checks as a
substitute for currency,” Bad Check Laws, supra, at 451, other jurisdictions began to
recognize the essential difference between worthless check acts and other common-law
crimes. For example, the Arizona Supreme Court stated in 1926:

While the courts generally hold that one who obtains property upon a credit
agreement and later gives a bogus check in payment is not guilty of the crime
of obtaining property by false pretenses because nothing in exchange for the
check is obtained, the offense defined in [Arizona’s Bad Check Act] is a new
and distinct one, and to be guilty of it it is not necessary that one obtain
money or property at the time of passing the check.

State v. Meeks, 247 P. 1099, 1099-1100 (Ariz. 1926). The Ohio Supreme Court commented
similarly:

It was the evident purpose of this statute to prevent the negotiation of
false checks drawn on accounts which did not exist, or were insufficient to
pay the checks drawn. It was meant, for example, to protect hotelkeepers
from receiving ‘cold checks' in payment of obligations incurred for lodging,
many of which are past due. It was enacted to protect business men all over
the state, to protect commercial life; about 90 per cent. of the commercial
work of the world being done on credit. In order to protect the credit
intercourse of the community this statute was enacted creating a new crime
and providing new and distinct rules of evidence.

State v. Lowenstein, 142 N.E. 897, 899 (Ohio 1924), superceded by statute, Passing Bad
Checks, Ohio Rev. Code Ann. § 2913.11 (West 1986), as stated in State v. Rudd, 562 N.E.2d
955, 956-57 (Ohio Mun. Ct. 1988). These courts recognized that “the evils referred to are
all quite distinct from those consequent on fraud, and the statute is to be regarded as creating
a new and distinct offense.” State v. Avery, 207 P. 838, 839 (Kan. 1922), superceded by
statute, Kans. Stats. Ann. § 21-554 (1963), as stated in State v. Beard, 416 P.2d 783, 785
(Kan. 1966).

{20} Unlike obtaining property by false pretenses,

[t]he present statute is aimed at a practice which has become a menace to
trade, an evil and a mischief in the field of commerce, where the major
portion of business is done on paper. . . .[I]t is a crime, an injury to society,
to undermine, in any degree, the very foundation upon which all credit rests.

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State v. Yarboro, 140 S.E. 216, 220 (N.C. 1927) (Stacey, C.J., concurring). Admittedly,
these cases do not interpret statutes requiring a check to be given “in exchange for a thing
of value.” They do, however, take into account the purposes behind these worthless checks
statutes, which are similar to those stated in the modern Act.

{21} Even though some courts, like those cited above, took notice of the purpose of bad-
checks legislation, “[a] number of courts clung to the notion that there could be no intent to
defraud unless something of value was obtained by the accused, and therefore a check given
in payment of an antecedent obligation was held not within the scope of the ordinary bad
check law.” Bad Check Laws, supra, at 454 (emphasis added). For a time, at least initially,
New Mexico seems to have followed the latter trend by “clinging to the notion” of
“antecedent obligations.”

{22} Davis, decided in 1921, and the second case cited by our Court of Appeals for the
pre-existing debt rule stands for just such a proposition. In that case, this Court concluded
that the 1919 version of the Act did not apply to a buyer who obtained goods on open
account and later settled the existing account with a bad check. Davis, 26 N.M. at 524-25,
194 P. at 882. The then recently amended 1919 Act defined the crime as “attempted
larceny” or “larceny,” committed “if money or property is obtained from another” by use
of a worthless check. Compare § 1560 (1907), with 1919 N.M. Laws, ch. 132, § 1 (emphasis
added). Since the goods had already been “obtained” before the issuance of the check, this
Court held that the Act did not apply because “there could be no . . . fraudulent intent.”
Davis, 26 N.M. at 525, 194 P. at 882 (“The question is whether or not it is a violation of the
section of the statute quoted for one to issue a check in payment of an outstanding account,
credit not being given on the strength of the checks so issued. Clearly it is not a violation
of the statute, because . . . there [could] be no intent to defraud, which is the gist of the
offense.”).

{23} Davis seems to have overlooked the 1919 Act’s newly-added provision that appears
to contradict this reasoning: “the making . . . of a check, . . . payment of which is refused
by the drawee because of lack of funds or credit, shall be prima facie evidence of intent to
defraud.” 1919 N.M. Laws, ch. 132, § 1 (emphasis added). Whether or not correct at the
time, however, Davis does stand for the proposition that the 1919 Act, with its particular
language pertaining to obtaining property and an intent to defraud, does not cover worthless
checks issued to pay antecedent obligations.

{24} Significantly, our Legislature amended the 1919 Act soon thereafter to eliminate the
language that money or property must be “obtained from another” by use of the fraudulent
check. Compare 1919 N.M. Laws, ch. 126, § 1, with 1929 N.M. Laws, ch. 132, § 1. At the
time, the 1929 amendment was characterized in a scholarly journal as part of a national
trend, a “flurry of legislation definitely resolving the doubt in respect to checks given for
antecedent obligations in favor of their inclusion within the statutory penalty.” Bad Check
Laws, supra, at 454 & n.20 (citing 1929 N.M. Laws, ch. 126, along with statutes from
Indiana, Michigan, and Montana). Continuing along that same line of thought, “[t]he

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Tentative Draft of the American Law Institute’s Model Penal Code (1955), § 206.22,
establish[ed] as a crime the issuance or passing of a check knowing that it will not be
honored, regardless of whether or not property was thereby obtained.” State v. Goerdes, 137
A.2d 100, 104 (N.J. Super. Ct. Law Div. 1957) (citing the Model Penal Code proposal in
support of the proposition that false pretenses and issuing of a worthless check are distinct
crimes).

{25} During the subsequent decades, New Mexico courts had no occasion to revisit Davis,
and specifically the “notion” of the antecedent-debt exclusion, in light of the 1929
amendments to the Act, as well as changes thereafter. That lack of opportunity is
unfortunate. Accordingly, Davis continues to stand as cited precedent for the antecedent-
debt rule, despite material changes in the Act, reflecting notable changes in societal attitudes
towards the crime of issuing worthless checks. Decades later, we now have such an
opportunity.

{26} Continuing with our analysis of the evolution of the Act, in 1963 the Legislature
replaced the Act in its entirety with what, for the most part, is the statute in its present form.
Compare 1963 N.M. Laws, ch. 315, §§ 1-10, with §§ 30-36-1 to -10. As previously
observed, the 1963 Act was the first to include the language at issue today, “in exchange for
anything of value.” Compare 1963 N.M. Laws, 315, §§ 1-10, with § 1560 (1907); 1919
N.M. Laws, ch. 132, § 1; 1929 N.M. Laws, ch. 126, § 1; 1937 N.M. Laws, ch. 142, §§ 1-5;
1953 N.M. Laws, ch. 132, § 1; 1959 N.M. Laws, ch.113, §§ 1-2; 1961 N.M. Laws, ch. 206,
§ 1. With the 1963 replacement, the Legislature continued the trend, begun in 1929, that the
check need not be issued to “obtain[]” property. Compare 1919 N.M. Laws, ch. 132, with
1929 N.M. Laws, ch. 126, § 1, and 1963 N.M. Laws, ch. 315, §§ 1-10. Presumably, given
these trends and the inclusion of a purpose statement that saying as much, our Legislature
intended courts to focus on the evils of the worthless check itself and less on whether a check
issued to pay for a present transaction or a pre-existing obligation.

{27} In 1992 the antecedent debt “notion” resurfaced in Platt, the only case to date that
has construed the 1963 Act. Platt, 114 N.M. 722, 845 P.2d 816. In Platt, an owner, seeking
to renovate his property for use as an inn, entered into a contract for the purchase and
installation of carpeting and drapes. Id. at 722, 845 P.2d at 816. The owner paid for those
goods and services by a series of checks, some of them worthless, having been issued after
the goods were delivered and installed, and some of them in payment of previous checks that
had been returned for insufficient funds. Id.

{28} Like the open account in Davis, the owner argued that his check had issued to pay
for a pre-existing debt—the installations already performed and the goods already delivered.
Platt, 114 N.M. at 722, 845 P.2d at 816. Correctly, our Court of Appeals rejected that
argument and instead “read Davis as limited to its facts.” Platt at 723, 845 P.2d at 817.
Based on this reading, the Platt court determined that the pre-existing debt exception would
only apply to “situations in which something of value has previously been delivered to a
person in reliance on that person's credit, and the check is later tendered as partial payment

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on the credit account.” Id. In other words, the kind of open account litigated in Davis.

{29} According to Platt, the modern Act does apply to transactions in which goods and
services are delivered before the issuance of a check, if a creditor/debtor relationship was
not contemplated and the “parties intended to have a cash transaction.” 114 N.M. at 723,
845 P.2d at 817. Because the parties in Platt “intended to have a cash transaction,” and there
was “no evidence that [the contractors] intended to extend credit to defendant,” then “the fact
that the goods and services were delivered before the check was issued did not signify that
an exchange did not occur within the meaning of Section 30-36-4.” Platt, 114 N.M. at 723,
845 P.2d at 817.

{30} Up to that point, we have no dispute with Platt. However, despite Platt’s newly
functional approach and its purported limitation of Davis, the Court of Appeals then
proceeded to limit the Act’s application to a “contemporaneous transaction.” Based on the
timing of the exchange, “a worthless check is given for something of value if the worthless
check is issued as part of a contemporaneous transaction.” Platt, 114 N.M. at 723, 845 P.2d
at 817. In other words, if the worthless check is not part of a contemporaneous transaction,
then presumably it would be in payment of an antecedent debt and the modern Act would
not apply. Though seemingly circular in its analysis, it is Platt’s condition of
contemporaneousness that caught the eye of the Court of Appeals in the present case.

{31} Applying Platt to this case, the Court of Appeals asked whether a “payment of wages
earned is payment of a pre-existing debt” or a “contemporaneous transaction.” Cruz,
2010-NMCA-011, ¶¶ 32-33. The Court of Appeals distinguished this case from Platt on the
basis that, in Platt, “the recipients of the check sought payment on the very day they
provided services,” and that “there [was] nothing to suggest that the recipients ever agreed
to a delay before being compensated for their work.” Cruz, 2010-NMCA-011, ¶ 40. On the
other hand, the workers “in this case worked for a week with the expectation that they would
have to wait another week before being paid for their labor.” Id. In other words, according
to the Court of Appeals, the workers became creditors of their employer, in effect loaning
the employer their wages for the week it took to deliver their payroll checks. Having
previously “read Davis as limited to its facts,” Platt, 114 N.M. at 723, 845 P.2d at 817, the
Court of Appeals now, in effect, exhumed it. And along with it, came the discredited
exception of an antecedent or pre-existing debt.

The Amended Act Evidences Legislative Intent to Change the Act’s Application

{32} Although Platt was on the right track in limiting Davis “to its facts,” it failed to
appreciate that, after Davis, the Act was amended or replaced nine times. Platt, 114 N.M.
722-23, 845 P.2d 816-17 (failing to consider, for example, changes made in 1929 N.M.
Laws, ch. 126, § 1; 1963 N.M. Laws, ch. 315, §§ 1-10; and 1979 N.M. Laws, ch. 8, §§ 1-2).
Section 4 of the 1963 Act made it a crime, for the first time, to issue a check “in exchange
for anything of value, with intent to defraud”—the essence of the crime still today. Compare
1963 N.M. Laws, ch. 315, § 4, with § 30-36-4. It also defined “thing of value” in the way

10
it is still defined today: “money, property, services, goods and wares and lodging.”
Compare 1963 N.M. Laws, ch. 315, § 2, with § 30-36-2. The existing purpose statement was
also first added in 1963. See § 30-36-3.

{33} These changes, along with those made in 1929, discussed earlier, indicate a
legislative intent to alter the Act’s application. See Truong v. Allstate Ins. Co.,
2010-NMSC-009, ¶ 36, 147 N.M. 583, 227 P.3d 73 (“In our statutory construction, we must
give effect to those changes. ‘This Court has long held that we must avoid constructions of
statutory amendments that would render the change unnecessary and meaningless.’” (quoting
State v. Nick R., 2009-NMSC-050, ¶ 28, 147 N.M. 182, 218 P.3d 868)). Although Platt read
a “contemporaneous transaction” into the Act, the modern Act does not indicate that the
Legislature contemplated a “contemporaneous exchange” or any other specialized meaning
of “exchange.” See § 30-36-4. As previously noted, the word “contemporaneous” does not
appear in the text of the modern Act.

{34} The Legislature’s inclusion of “services” in the definition of “thing of value,” also
indicates that “exchange” should not be limited to “contemporaneous exchange.” That the
definition of “thing of value” specifically includes “services,” “property,” and “lodging”
indicates that the modern Act should apply even when contemporaneous exchanges are not
possible, expected, or typical. For example, it is not uncommon for employers to pay wages
by check with a week’s delay. It is not uncommon for tenants to use checks to pay their rent
for the coming month. Vacationers commonly pay well in advance for lodging to reserve a
space (for example, on a cruise or for vacation rental). The Act gives no indication that such
transactions should be excluded. Such checks are unquestionably “given in return for”
services, property, or lodging, whether or not the transaction can be described as
contemporaneous.

{35} If an exchange need not be contemporaneous, then what strictures exist to limit
coverage under the Act? Simply put, as selected by our Legislature, there must be an
exchange, a quid pro quo of some kind, involving “anything of value.” The Act would
appear not to apply, for instance, to checks given gratuitously, such as charitable donations.
Beyond that, although we do not here decide questions not directly presented to us, the Act
would appear to apply. Our Legislature appears to have decided, as a matter of public
policy, that it is more important to punish and deter the issuance of worthless checks than
whether goods and services were provided contemporaneously with that check. We will
enforce that policy choice.

Other States

{36} We recognize that other states have adopted a contemporaneous transaction test. See
Platt, 114 N.M. at 723, 845 P.2d at 817 (listing cases in support of its adoption of the
contemporaneous transaction rule and its reading of Davis that the Act excludes “situations
in which something of value has previously been delivered to a person in reliance on that
person's credit, and the check is later tendered as partial payment on the credit account”).

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We note, however, that in each of the cases cited in Platt and Cruz, the statute in question
is materially different from our modern Act. See Ledford v. State, 362 S.E.2d 133, 133-34
(Ga. Ct. App. 1987) (per curiam) (requiring a contemporaneous exchange for the Georgia
Act to apply when the statute in question called for the issuance of the check to be “in
exchange for a present consideration or wages,” rather than “in exchange for something of
value” (emphasis added) (internal quotation marks and citation omitted)); Parker v. State,
484 So. 2d 1033, 1036 (Miss. 1986) (requiring the recipient of a check to have relied upon
the issued check itself for the Mississippi statute to apply, when the Mississippi statute was
called “false pretenses by delivery of a bad check” (emphasis added)); Hoyt v. Hoffman, 416
P.2d 232, 233 (Nev. 1966) (requiring the maker of a check to receive a benefit “as a result
of” a check’s delivery in order to apply the Nevada act, but also asserting that the purpose
of the statute in question was “to charge a defendant who obtains a benefit as a result of the
check” and that “[t]he legislature did not intend to make it a crime to issue a worthless check
absent damage or injury to the payee thereof”). Unlike the Georgia, Mississippi, and Nevada
statutes, our Act does not require an exchange for present consideration, it has never
mentioned false pretenses, and it does not require that anything happen “as a result” of a
check’s delivery. See §§ 30-36-1 to -10.

{37} The Court of Appeals also cited State v. Sinclair, 337 A.2d 703, 707-11 (Md. 1975);
State v. Cote, 594 N.E.2d 198, 199 (Ohio Mun. Ct. 1991); and Hindman v. State, 378 So. 2d
663, 664 (Miss. 1980). Cruz, 2010-NMCA-011, ¶ 36. Upon close examination, however,
none of these cases consider statutes that include the provisions of the Act we find
determinative today, which include “exchange for anything of value,” “thing of value”
defined to include “services,” and an explicit purpose statement to reduce harm to the
banking system. Each case makes reference to “obtain[ing]” things of value through the use
of a check. See Sinclair, 337 A.2d at 706-07 (interpreting a Maryland statute that required
that “money, credit, goods, wares or anything of value” are obtained by means of a check
and had previously been considered a form of false pretenses, did not mention of services,
and provided that there was “‘presumptive evidence of such intent to cheat and defraud’ only
where there ha[d] not been a return or tender of the return of the ‘thing so obtained,’” and
it is impossible to “return” services); Cote, 594 N.E.2d at 203-04 (interpreting an Ohio
statute that defined defraud as “‘knowingly obtain, by deception, some benefit for oneself
or another, or to knowingly cause, by deception, some detriment to another’”); Hindman,
378 So. 2d at 664-65 (interpreting a statute that not only required that a check be used to
obtain money, or articles of value or services, but also specifically codifying that “past due”
accounts were excluded).

{38} Not only do the cases cited in Cruz apply significantly different statutes, but they
apply those statutes in a manner similar to the common-law prohibition against false
pretenses. Compare State v. Rochette, 594 A.2d 1006, 1010 (Conn. App. Ct. 1991) (“To be
found guilty of [obtaining property by false pretenses], a person, therefore, must knowingly
make a false representation with the intent to defraud, and that false representation must
induce action that effectively causes the accused to receive something of value without
compensation.”), with Hindman, 378 So. 2d at 665 (“[R]eliance upon the check must have

12
been the efficient inducement which moved the party receiving it to part with something of
value, including valuable services, relying upon its validity.”). As previously discussed, the
purpose of our Act and our general history of worthless check legislation do not support such
a reading.

{39} For the foregoing reasons, we hold that the antecedent or pre-existing debt exception
no longer applies to criminal prosecutions under the Act, including the State’s case against
Defendant herein. We also reject the requirement of a contemporaneous transaction as set
forth in Platt. The language of the Act requiring “an exchange for anything of value” is to
be read broadly, according to its terms, in conjunction with the rest of the Act, and in light
of the history, purpose, and context of the Act as set forth in this opinion.

CONCLUSION

{40} We reverse the Court of Appeals and remand for consideration of the remaining
issues raised, but not decided, before the Court of Appeals.

{41} IT IS SO ORDERED.

____________________________________
RICHARD C. BOSSON, Justice

WE CONCUR:

____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Cruz, Docket No. 32,130

CM COMMERCIAL LAW
CM-CM Commercial Law, General
CM-FU Fraud
CM-OA Open Account
CM-VP Vendors and Purchasers

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CL CRIMINAL LAW
CL-FE Felony
CL-FR Fraud
CL-WC Worthless Checks Offenses

PR PROPERTY
PR-PN Promissory Notes

ST STATUTES
ST-AP Applicability
ST-IP Interpretation
ST-LI Legislative Intent
ST-RC Rules of Construction
St-SG Statutes, General

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