State v. Soutar

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 16:46:01 2012.03.08

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-024

Filing Date: February 10, 2012

Docket No. 28,167

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

MICHAEL SOUTAR,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge

Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender
Eleanor Brogan, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

CASTILLO, Chief Judge.

{1} Convicted of racketeering and several state securities violations, Michael Soutar
(Defendant) now appeals his convictions. He challenges the court’s revocation of his plea
deal, the nature of the jury instructions, and the sufficiency and admission of evidence used
to convict him. For reasons explained below, we affirm.

I. BACKGROUND

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{2} Defendant was tried and convicted of multiple violations of the New Mexico
Securities Act of 1986, NMSA 1978, Sections 58-13B-1 to -57 (1986, as amended through
2003) (repealed 2009), and one count of racketeering in violation of NMSA 1978, Section
30-42-4 (2002). These convictions arose out of Defendant’s formation of Santa Fe
International Development, a Limited Liability Company (the LLC), under which Defendant
operated a business called the Santa Fe Market (the Market).

{3} Defendant acted as general manager of the Market and advertised it as a facility near
the Plaza in Santa Fe where artists could lease space, sell their products, and keep eighty-five
percent of their proceeds, relinquishing the remainder to the Market. Defendant attracted
several investors who bought interests in the LLC through investment contributions. These
investments were significant, in the range of $25,000 and up.

{4} The Market failed, and the investors lost all of their money. The victims alleged that
they had been defrauded. Defendant was indicted in December 2004 on nine counts of
securities violations for unlawfully selling interests in the LLC, one count of racketeering
based on the securities violations, and numerous other charges including escape from jail,
forgery, and fraud.

{5} Defendant entered into plea negotiations with the State. He represented that he had
$125,000 at his disposal from a third party and informed the State that he was willing to
provide this money to the victims as an initial lump-sum restitution payment if an acceptable
plea agreement was reached. Defendant further indicated that, if no plea was reached and
Defendant was required to stand trial, this money would have to be put toward the costs of
his defense. Defendant also informed the district court of the existence of these funds and
his desire to compensate the victims as part of a plea agreement.

{6} In October 2006, a plea hearing was held, and the district court accepted and entered
a plea and disposition agreement. The agreement included a provision requiring Defendant
to make restitution but did not specifically reference a lump-sum payment. Defendant
agreed to plead no contest to three counts of fraudulent practices in connection with the sale
of securities, one count of escape from jail, and one count of racketeering. Immediately after
accepting the agreement, the district court proceeded to orally sentence Defendant. The
sentence imposed—twelve years’ confinement with all but three years suspended,
entitlement to good time, and a five-year probationary period—was consistent with the terms
of the agreement.

{7} Seventeen days after the plea hearing, the State filed a “motion for reconsideration
of sentence or to withdraw [the] plea.” The State alerted the court to the fact that Defendant
had failed to live up to his commitment to make restitution.

{8} At the hearing on that motion, Defendant confirmed that he was either unable or
unwilling to make an initial lump-sum payment. The district court informed Defendant that

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the only reason it had accepted the plea was because it understood that the terms of the
agreement required Defendant to make restitution and that restitution involved a substantial,
initial lump-sum payment. Defendant responded that, while the plea agreement did include
a restitution provision, it did not include any reference to a lump-sum payment. Defendant
further argued that double jeopardy and other legal principles precluded the court from
withdrawing the plea or altering the orally imposed sentence. The court disagreed, withdrew
the plea, and ordered Defendant to stand trial.

{9} At the close of trial, Defendant proposed several instructions that the court denied.
Defendant was convicted of one count of racketeering and three counts each of fraudulent
practices in connection with the sale of securities in violation of Section 58-13B-30; selling
unregistered securities in violation of Section 58-13B-20; and selling securities without a
license in violation of Section 58-13B-3. He was sentenced to eighteen years’ confinement
for these offenses and an additional sixteen years’ confinement as a habitual offender for a
total period of thirty-four years’ confinement.

II. DISCUSSION

{10} On appeal, Defendant raises five issues. He asserts that the oral sentence the court
imposed under the plea agreement was final and binding and that double jeopardy precluded
the court from ordering him to stand trial. Second, he contends that the district court abused
its discretion when it ordered the plea agreement withdrawn and claims that “after the court
accepted the plea agreement[,] it was bound by its terms to sentence [him] to the negotiated
sentence.” He maintains that the plea agreement did not require him to make an initial lump-
sum payment, yet the district court granted the State’s request to withdraw the agreement due
to his inability to make that payment. Third, he claims two errors regarding the court’s
denial of his proposed jury instructions. Fourth, he challenges the sufficiency of the
evidence underlying his convictions. Fifth, and finally, he asserts that the court erred in
admitting evidence of his prior bad acts. We address these issues in turn.

A. Double Jeopardy

{11} “We generally review double jeopardy claims de novo.” State v. Rodriguez, 2006-
NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737. The Double Jeopardy Clause of the United
States Constitution guarantees that no person shall “be subject for the same offense to be
twice put in jeopardy of life or limb[.]” U.S. Const. amend. V. However, “[i]n order to
successfully claim double jeopardy, a former jeopardy must have occurred—there must have
been a previous proceeding in which jeopardy attached.” State v. Angel, 2002-NMSC-025,
¶ 7, 132 N.M. 501, 51 P.3d 1155. Here, Defendant acknowledges that jeopardy did not
attach when the court accepted his plea. See id. ¶ 13 (holding that jeopardy does not attach
upon a court’s acceptance of a guilty plea). Rather, he argues that jeopardy attached at the
oral sentencing. We disagree.

{12} Our Supreme Court has previously recognized that “jeopardy attaches when the court

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enters a judgment and imposes a sentence on the guilty plea.” Id. ¶ 10. This is because entry
of judgment and sentence carries with it an “expectation of finality.” Id. ¶ 15.

[T]he analytical touchstone for double jeopardy is the defendant’s legitimate
expectation of finality in the sentence, which may be influenced by many
factors such as the completion of the sentence, the passage of time, the
pendency of an appeal or review of the sentencing determination, or the
defendant’s misconduct in obtaining the sentence.

State v. Hardesty, 915 P.2d 1080, 1085 (Wash. 1996) (en banc).

{13} In our view, Defendant could not have formed an expectation of finality in the oral
sentence. An oral sentence is not “a final judgment and is subject to change until reduced
to writing.” State v. Rushing, 103 N.M. 333, 334, 706 P.2d 875, 876 (Ct. App. 1985). As
such, our Supreme Court has explained that “a trial court’s oral announcement of a result is
not final, and parties to the case should have no reasonable expectation of its finality.” State
v. Lohberger, 2008-NMSC-033, ¶ 20, 144 N.M. 297, 187 P.3d 162. Defendant
acknowledges this law, but directs us to State v. Porras, 1999-NMCA-016, ¶ 14, 126 N.M.
628, 973 P.2d 880, where we held that the defendant had a reasonable expectation of finality
in an oral pronouncement of sentence because the defendant had begun serving his sentence.
For the reasons that follow, Porras is inapplicable here.

{14} As the State observes, Defendant has done nothing to explain how he began serving
his sentence after the oral sentence was imposed beyond simply stating that he did so. See
Santa Fe Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819,
824 (1992) (stating that where a party fails to cite any portion of the record to support its
factual allegations, appellate courts need not consider its argument on appeal). More
critically, the oral sentence arose out of the plea agreement and, as we explain in the
following section of this Opinion, Defendant made representations about making an
immediate lump-sum restitution payment, a basis upon which the district court accepted the
agreement. Later, Defendant either could not or would not provide that payment. Defendant
could not have formed an expectation of finality in an oral sentence imposed pursuant to a
plea agreement, the terms of which he either could not or would not keep. See Rushing, 103
N.M. at 335, 706 P.2d at 877 (holding that the defendant had no reasonable expectation of
finality in a sentence obtained through misrepresentations at the time of sentencing). This
conclusion is in line with other authorities. Cf. Brown v. State, 367 So. 2d 616, 623 (Fla.
1979) (“We hold, therefore, that the [D]ouble [J]eopardy [C]lause does not bar the
reprosecution of an accused who willfully refuses to perform a condition of a guilty plea
which has been accepted by the trial court on that basis.”); 22 C.J.S. Criminal Law § 286
(2011) (“The Double Jeopardy Clause does not bar reprosecution of an accused individual
who willfully refuses to perform a condition of a guilty plea.”).

{15} We conclude that double jeopardy principles did not preclude the district court from
ordering Defendant to stand trial. Double jeopardy did not attach at the time of the oral

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sentencing. Thus, the district court’s decision to require Defendant to stand trial did not
implicate double jeopardy concerns. We turn now to the plea agreement and explain in
greater detail why the court did not err in agreeing to withdraw the plea.

B. Withdrawal of the Plea Agreement

{16} Because the oral sentence was not final, we review the district court’s decision to
withdraw the plea only for an abuse of discretion. See State v. Hunter, 2005-NMCA-089,
¶ 20, 138 N.M. 96, 117 P.3d 254 (“A district court exercises its discretion when deciding
whether to permit a pre-sentence plea withdrawal, and we review the court’s ruling to
determine whether, under the facts offered in support of the motion, the trial court abused
its discretion.” (internal quotation marks and citation omitted)), aff’d, 2006-NMSC-043, 140
N.M. 406, 143 P.3d 168. “A court abuses its discretion when it is shown to have acted
unfairly, arbitrarily, or committed manifest error.” Id. (internal quotation marks and citation
omitted).

{17} “A plea agreement is a unique form of contract the terms of which must be
interpreted, understood, and approved by the trial court.” State v. Mares, 119 N.M. 48, 51,
888 P.2d 930, 933 (1994). “In reviewing and interpreting the agreement a court should
construe the terms according to what [petitioner] reasonably understood when he entered his
plea.” Id. (alteration in original) (internal quotation marks and citation omitted).

{18} Defendant’s plea agreement included the following provision: “[D]efendant agrees
to make restitution on all charges. . . .” Our review of the record reveals that all
parties—Defendant, the district court, and the State—understood this provision to require
Defendant to make an initial and immediate lump-sum restitution payment. At the plea
hearing, the court informed Defendant that the court’s primary concern was to ensure that
the victims of Defendant’s crimes received maximum restitution. Jail time, the court
explained, did little to achieve that objective, and the court had significant doubts about
Defendant’s ability to make incremental payments over time. The court believed that the
plea agreement, as the court understood it, satisfactorily addressed its primary concern
because it entailed Defendant making a substantial and immediate lump-sum payment. The
Court’s understanding that the restitution provision in the agreement entailed a lump-sum
payment was not based on surmise or assumption but on Defendant’s representations.

{19} At the plea hearing—specifically, during plea recommendations and before the court
accepted the plea—Defendant made the following statements:

Defense Counsel: Your honor, we, we, basically have spent a lot of time
in trying to get this hammered out. I think that . . .
[the plea is] a good resolution for everybody. We are,
you know, we have the means over, you know, over
the time period, to make the restitution. The intention
has always been to make a, an initial lump-sum kind

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 of based on . . . what the funds are available. I mean
it’s true, all the way back in January or February I
made it clear that there was a finite amount of money
and that it was impossible to both . . . try the case, and
lawyer the case out, and pay restitution.

The Court: What’s the ballpark figure that you are talking about
as far as an initial lump sum?

Defense Counsel: You know, I need to speak with the person. I mean,
you know, basically what we’re looking at in terms of
an initial lump sum would have been the original
amount we had thrown out there was $125,000, but as
time has gone along and there have been lawyer fees
and everything else that cuts into the initial lump sum,
and I just don’t know what that is right now.

This excerpt refutes Defendant’s contention that “[t]he first mention of an initial lump-sum
restitution payment came after the plea agreement had been accepted by the court.” After
accepting the plea, the district court gave Defendant specific instructions regarding the lump-
sum payment:

The Court: Now this is what I want you to do. Between now and
the time this case is over, so you now are under an
obligation to make restitution.

Defendant: Yes sir.

The Court: Between now and the time you deal with Arizona, I
want to see you through your lawyer try to access that
money that you talked about and get that paid.

Defendant: Okay. Can I say something? The money that he
talked about was last December that we came up with
the money. There’s been horrendous expense over
the last year. And we discussed this up front because
I wanted to get the money. That’s the money I
wanted to get back in their pockets.

Defense Counsel: But there’s nonetheless . . .

The Court: There is some available?

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 Defendant: Oh, sure, absolutely your honor.

The Court: I don’t want you to wait on making that payment. . . .
In other words, tomorrow I want you to start your
efforts. I know it’s difficult from jail, but through
your lawyer I want you to start your efforts in getting
that money transferred so that restitution can be made,
immediately. I mean, if you go to Arizona, and they
give you another three months there for your felony
there, I don’t want these people to have to wait
another five months.

Defendant: I understand.

The Court: So you start immediately.

Defendant: I understand. That’s my whole intention.

{20} This interchange demonstrates that the plea agreement was premised on the
understanding that Defendant would make a substantial and immediate lump-sum restitution
payment. While this is not specifically stated in the agreement, the record supports the
conclusion that Defendant reasonably understood that the restitution provision that is in the
agreement entailed this type of lump-sum payment. Defendant was either unable or
unwilling to make that payment and, thus, was unable to honor the terms of the agreement.
The court did not abuse its discretion in withdrawing the plea.

C. Jury Instructions

{21} Defendant next claims that the district court committed reversible error in denying
several of his proposed jury instructions. We review each claimed error in turn but first
establish our standard of review. “The propriety of jury instructions given or denied is a
mixed question of law and fact.” State v. Lucero, 2010-NMSC-011, ¶ 11, 147 N.M. 747, 228
P.3d 1167 (internal quotation marks and citation omitted). “[W]e review any factual
questions under a substantial evidence standard[,] and we review the application of law to
the facts de novo.” State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 176, 164 P.3d 57
(internal quotation marks and citation omitted). “An appellate court reviews challenged jury
instructions to determine whether they correctly state the law and are supported by the
evidence introduced at trial.” Gonzales v. N.M. Dep’t of Health, 2000-NMSC-029, ¶ 28, 129
N.M. 586, 11 P.3d 550. “It is not error for a trial court to refuse instructions which are
inaccurate.” State v. Salazar, 1997-NMSC-044, ¶ 57, 123 N.M. 778, 945 P.2d 996. Our
review also involves deciding “whether a reasonable juror would have been confused or
misdirected by the jury instruction.” State v. Cunningham, 2000-NMSC-009, ¶ 14, 128
N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted). It is not error for
a court to refuse an instruction that is confusing or misleading. State v. Skipworth, 64 N.M.

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175, 178, 326 P.2d 669, 670-71 (1958). “[J]uror confusion or misdirection may stem not
only from instructions that are facially contradictory or ambiguous, but from instructions
which, through omission or misstatement, fail to provide the juror with an accurate rendition
of the relevant law.” State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134.

{22} Defendant first argues that the district court erred in denying his proposed instruction
defining the term “security.” We review the facts underlying this claim. As noted,
Defendant was charged with multiple securities violations including three counts of
fraudulent practices in connection with the sale of securities, three counts of selling
unregistered securities, and three counts of selling securities without a broker’s license. One
essential element common to all of these offenses is that “[D]efendant sold a security.”
Defendant proposed an instruction purportedly defining “security”; the suggested instruction
read as follows:

Essential Element of “Security” Defined

For you to find [D]efendant guilty of fraudulent practices in securities as
charged in Count I, the State must prove beyond a reasonable doubt all of the
elements that show that the instrument [D]efendant sold was a security.

An ownership interest in an LLC is a security if it is:

1. An investment;
2. In a common enterprise;
3. With the expectation of profit; and
4. To be derived through the essential managerial efforts of
someone other than the investor;
5. Unless context requires otherwise.

Here, a “common enterprise” means an enterprise in which the
fortunes of the investor are interwoven with and dependent upon the
efforts and successes of those seeking the investment or of a third
party;

OR

1. An investment by which an offeree furnishes initial value to
an offeror;
2. A portion of this initial value is subjected to the risks of the
enterprise;
3. The furnishing of the initial value is induced by the offeror’s
promises or representations;
4. Which give rise to a reasonable understanding that a valuable
benefit of some kind over and above the initial value will

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 accrue to the offered;
5. As a result of the operation of the enterprise; and
6. The offeree does not receive the right to exercise practical
and actual control over the managerial decisions of the
enterprise;
7. Unless context requires otherwise.

Each transaction must be analyzed on the basis of the content of the
instruments in question, the purposes intended to be served, and the factual
setting as a whole.

The law provides that “context requires otherwise” where the parties have a
unique agreement, the instruments do not have equivalent value to most
persons, the instruments could not be traded publicly, and the purchaser is
motivated by a desire to use or consume an item purchased.

If you find that “context otherwise requires” then the instrument is not a
security, and you must find [Defendant] not guilty of fraudulent practices in
securities.

The Court denied this instruction and, after consulting with the parties and reviewing UJI
14-4310 NMRA (defining “security”), issued the following instruction:

A “security” is a [sic] ownership right or a creditor relationship and
includes any investment contract and a limited liability company interest.

1. Any investment contract means a contract:
a. Where an individual invests his money;
b. In an undertaking or venture of two or more people or entities;
c. With an expectation of profit;
d. Based primarily on the efforts of others.
2. A limited liability company interest means a member’s or
assignee’s right to receive distributions and a return of capital
from the limited liability company[;]
3. Unless the context requires otherwise.

An investment is the use of capital or money to create more money.

Defendant claims that the “court committed reversible error when it denied [his] tendered
instruction on the definition of a security.” We disagree.

{23} We agree with the State’s assessment that Defendant’s proposed instruction is both
misleading and unclear. Although the instruction is titled “security defined”, the instruction
does not actually define the term. Rather, it purports to identify the circumstances under

9
which an interest in a limited liability company constitutes a security. Moreover, the bulk
of the instruction focuses not on the meaning of “security,” but on the meaning of “common
enterprise.” Finally, the sheer breadth of the instruction is troubling. We conclude that the
instruction had great potential to misdirect and confuse the jury. See State v. Barber,
2004-NMSC-019, ¶¶ 19-20, 135 N.M. 621, 92 P.3d 633; State v. Rodarte, 2011-NMCA-067,
¶¶ 11-14, 149 N.M. 819, 255 P.3d 397, cert. denied, 2011-NMCERT-005, 150 N.M. 666,
265 P.3d 717; Berry v. Fed. Kemper Life Assurance Co., 2004-NMCA-116, ¶ 79, 136 N.M.
454, 99 P.3d 1166.

{24} Moreover, the proposed instruction is not a correct statement of the law. In the
definitions section of the New Mexico Securities Act of 1986, “security” is defined as
follows: “unless the context requires otherwise, ‘security’ means . . . any interest in a limited
liability company[.]” Section 58-13B-2(X). There is no dispute that Defendant sold
interests in a limited liability company. The statute provides that such an interest constitutes
a security, unless the context requires otherwise.

{25} Defendant emphasizes the phrase “unless the context requires otherwise” and asserts
that a jury must apply the “investment contract test” set out in S.E.C. v. W.J. Howey Co.
(Howey), 328 U.S. 293 (1946) to determine whether an interest in a limited liability company
is a security under the New Mexico Securities Act of 1986. In Howey, the United States
Supreme Court examined the scope of the definition of “security” in the federal Securities
Act of 1933, 15 U.S.C. §§ 77a to 77aa (1933, as amended through 2000). Howey, 328 U.S.
at 294. The federal act expressly defined “security” to include an investment contract.
Howey, 328 U.S. at 297. The issue before the Court was whether a land sales contract, a
warranty deed, and a service contract together constitute an investment contract. Id. The
Court answered this question in the affirmative and, in doing so, adopted what Defendant
refers to as the “investment contract test” so as to bring within the ambit of that Act the
“many types of instruments that in our commercial world fall within the ordinary concept
of a security.” Id. at 299 (internal quotation marks and citation omitted). Defendant’s
argument that Howey and the investment contract test are relevant here ignores significant
differences between the definition of “security” in the federal Securities Act of 1933 and the
New Mexico Securities Act of 1986.

{26} As stated above, the New Mexico statute defines an interest in a limited liability
company as a security, unless the context requires otherwise. The definition under the
federal statute is substantially different, in that it expressly includes investment contracts in
its definition. With this difference in mind, we fail to see how Howey and the federal
Securities Act of 1933 offer any guidance here. In addition, we have previously held that
the term “security” in the New Mexico Securities Act of 1986 was intended to be construed
broadly and that it is error to advocate a construction that narrows its applicability. State v.
Sheets, 94 N.M. 356, 360, 610 P.2d 760, 764 (Ct. App. 1980). Such a narrow construction
is precisely what Defendant advocates here. We recognize that the New Mexico statute
definition allows consideration of the context, and our analysis should not be understood as
an attempt to strip the phrase “unless the context requires otherwise” of any meaning. We

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simply conclude that this language does not have the meaning Defendant suggests—i.e., that
the court was required to instruct the jury that it was to apply the investment contract test
stated in Howey to determine whether the interests in the LLC that Defendant sold were
securities.

{27} We conclude that the district court did not err in denying Defendant’s instruction
defining “security.” That instruction was both confusing and legally inaccurate.

{28} Defendant’s second argument is that the court wrongly denied his proposed
instructions relating to the charges of the sale of unregistered securities. As noted,
Defendant was charged with three counts of selling unregistered securities in violation of
Section 58-13B-20. This statute provides the following:

It is unlawful for a person to offer to sell or sell any security in New
Mexico unless:

A. the security is registered under the New Mexico Securities
Act of 1986 [Chapter 58, Article 13B NMSA 1978];
B. the security or transaction is exempt under that act; or
C. the security is a federal covered security.

Section 58-13B-20(B). The district court issued three identical instructions, one for each of
the three counts charged, setting out the elements of the crime of selling unregistered
securities. The court’s instruction precisely tracks the language of the uniform instruction
for this offense. See UJI 14-4301 NMRA. The instruction the court issued states:

For you to find [D]efendant guilty of the sale of unregistered
securities, as charged in Count[s] 2 [5, and 8], the State must prove to your
satisfaction beyond a reasonable doubt each of the following elements of the
crime:

1. [D]efendant sold a security;
2. The security was required by the state securities law to be
registered with the State of New Mexico prior to the sale;
3. The security was not registered as required by the state
securities law;
4. This happened in New Mexico on [various dates].

{29} Defendant proposed an elements instruction that differed from this instruction and
the UJI in that it included as an essential element, adding a requirement that “[t]he sale of
the security was not an exempt transaction[.]” He also proposed an instruction setting out
what constitutes an “exempt transaction”. This instruction informed the jury that if it found
Defendant sold securities in the course of exempt transactions, it must acquit him of the
crime of selling unregistered securities. This latter instruction was based on UJI 14-4321

11
NMRA, which courts are instructed to issue if a defendant alleges an exempt sale, and
Section 58-13B-27(K), which governs the circumstances under which the sale of a security
“by a limited liability company” constitutes an exempt transaction.

{30} The district court denied both instructions. The court observed that Defendant’s
proposed elements instruction deviated from the UJI and further noted that Defendant was
not entitled to the other instruction because the issue of exemption was never raised at trial.
On appeal, Defendant claims this ruling was in error. He argues that he was entitled to any
instruction for which there was sufficient evidence and that failure to instruct a jury on a
defendant’s theory of the case is reversible error.

{31} We find no error in the district court’s decision to reject Defendant’s elements
instruction. “When a uniform jury instruction exists, that instruction must be used without
substantive modification.” State v. Caldwell, 2008-NMCA-049, ¶ 24, 143 N.M. 792, 182
P.3d 775. As to the district court’s decision to reject Defendant’s instruction defining what
constitutes an exempt transaction, we observe that Defendant correctly states the rules
regarding a defendant’s entitlement to instructions. See State v. Gaines, 2001-NMSC-036,
¶ 6, 131 N.M. 347, 36 P.3d 438 (“As a general proposition a defendant is entitled to an
instruction as to any recognized defense for which there exists evidence sufficient for a
reasonable jury to find in his favor.” (internal quotation marks and citation omitted)); State
v. Trammel, 100 N.M. 479, 481, 672 P.2d 652, 654 (1983) (“When evidence at trial supports
the giving of an instruction on a defendant’s theory of the case, failure to so instruct is
reversible error.”). However, as the district court observed, at trial Defendant did not
advance the theory that the securities at issue were sold during an exempt transaction. The
record amply demonstrates this point.

{32} The court expressed surprise when it learned Defendant was requesting an instruction
on the exempt transaction issue and stated “[b]ut you’re not claiming that.” Defendant
responded, “Actually, we are.” The court replied, “I didn’t hear any evidence of that” and
then posed the following question to Defendant: “I thought the only evidence we received
was that this was not a security; not that it was an exempt security.” Defendant responded
“I think Your Honor is characterizing correctly the gist of our defense at trial.”
Nevertheless, Defendant insisted that “I do think there’s facts to support the exemption” and
that “there’s enough information on this record for us to give the defense to the [j]ury.” The
court disagreed and responded that Defendant “didn’t argue [that point] at all in his opening”
and further stated that Defendant failed to ask the expert witnesses any questions about
whether the transaction qualified as exempt. The State agreed and noted its opposition to
the inclusion of the exemption issue in the instructions. The court concluded by stating, “I
think there’s no evidence to support that [exemption] was ever an issue raised by anybody”
and therefore denied the instruction that defined exempt transactions.

{33} Defendant conceded that his trial theory was exclusively that the interests sold were
not securities. This concession adequately supports the district court’s determination that
the issue of exemption was not raised at trial. Having failed to raise the issue of exemption

12
at trial, Defendant is not entitled to an instruction on the issue. See State v. Skippings, 2011-
NMSC-021, ¶ 10, 150 N.M. 216, 258 P.3d 1008 (“A defendant is entitled to an instruction
on his or her theory of the case.” (internal quotation marks and citation omitted)); State v.
Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 (“Failure to instruct the jury on
a defendant’s theory of the case is reversible error only if the evidence at trial supported
giving the instruction.”). We hold that the court did not err in denying Defendant’s proposed
instruction setting out what constitutes an exempt transaction.

D. Sufficiency of the Evidence

{34} Defendant next claims that “[t]here was insufficient evidence to support [his]
convictions.” He first challenges the evidence related to the nine securities convictions and
then addresses the evidence related to his racketeering conviction. We address his
arguments in turn and start with standard of review. “When evaluating the sufficiency of
evidence to support a conviction, we view the evidence in the light most favorable to the
[s]tate, resolving all conflicts and indulging all permissible inferences to uphold a verdict of
conviction.” State v. Castillo, 2011-NMCA-046, ¶ 24, 149 N.M. 536, 252 P.3d 760 (internal
quotation marks and citation omitted), cert. denied, 2011-NMCERT-004, 150 N.M. 648, 264
P.3d 1171. “We measure the sufficiency of the evidence against the jury instructions.” Id.

{35} A closer examination of Defendant’s sufficiency arguments related to his securities
convictions reveals that Defendant repeats an argument he has previously made. He argues
for the second time that the phrase “unless the context requires otherwise” in the definition
of the term “security” in the New Mexico Securities Act of 1986 required the jury to apply
the investment contract test set out in Howey to determine whether the LLC interest
Defendant sold was a security. Defendant claims that the jury was not so instructed and did
not perform this analysis. As such, he claims that the evidence was insufficient to support
the securities convictions. We have already determined that the Howey test and the federal
statute from which it is derived are inapposite here. We proceed to the sufficiency
arguments concerning the racketeering charge.

{36} The jury was instructed that the essential elements of racketeering include the
following:

1. . . . Defendant was associated with an enterprise, namely, The
Santa Fe Market.
2. While associated with that enterprise, . . . Defendant
intentionally, and, directly or indirectly, participated or conducted the affairs
of the enterprise by engaging in a pattern of racketeering activity.
3. The pattern of racketeering activity includes two or more of
the crimes of:
A. Securities Fraud as charged in Counts 1, 4, and 7;
4. This happened in New Mexico on or between December 17,
2003, and April 22, 2004.

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Defendant first argues that if we find insufficient evidence to support Defendant’s
convictions for fraudulent practices in connection with the sale of securities, we must vacate
the racketeering conviction. We have rejected Defendant’s contention that there is
insufficient evidence to support his varying securities convictions. This argument is
unavailing.

{37} Defendant then argues that the State failed to prove “the existence of an enterprise
with which [Defendant] associated.” We disagree. The New Mexico Racketeering Act
defines the term “enterprise” as “a sole proprietorship, partnership, corporation, business,
labor union, association or other legal entity . . .” NMSA 1978, § 30-42-3(C) (2009)
(emphasis added). A limited liability company is a legal entity. See Martinez v. Roscoe,
2001-NMCA-083, ¶ 7, 131 N.M. 137, 33 P.3d 887 (“State courts have also required artificial
legal entities, including limited liability companies, to be represented by a licensed
attorney.”). We are persuaded that there was sufficient evidence to establish Defendant
associated with an enterprise; namely, the Santa Fe Market. We proceed to the final issue
on appeal.

E. Evidentiary Issue

{38} Citing Rule 11-404(B) NMRA, Defendant contends that the court erred in allowing
the State to “introduce evidence of his prior convictions, some of which were [more] than
ten years old.” The State responds that we need not reach the merits of this claim because
Defendant failed to adequately develop it. We agree with the State.

{39} This portion of Defendant’s brief does not explain the factual underpinnings of his
argument. See Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We
will not search the record for facts, arguments, and rulings in order to support generalized
arguments.”). Our independent review of the record reveals that Defendant filed a motion
to exclude evidence of convictions and prior bad acts not related to fraud, and a motion to
exclude evidence of convictions and prior bad acts more than ten years old. Defendant has
not explained what the court decided regarding these motions or what evidence of his prior
convictions was admitted.

{40} Moreover, we observe that Defendant also filed a motion to limit references to his
prior convictions to fact of conviction and crime. There, he concedes that his prior fraud and
forgery convictions are admissible, notwithstanding Rule 11-404(B), as evidence of these
convictions is an essential element of the three counts of fraudulent practices in connection
with the sale of securities with which he was charged. Defendant has not explained how we
are to make sense of these conflicting motions. In addition, we observe that evidence of
prior bad acts “is admissible under Rule [11-404(B)] if it is probative of a material element
at issue.” State v. McGhee, 103 N.M. 100, 104, 703 P.2d 877, 881 (1985).

{41} We hold that Defendant has not sufficiently developed the contention that the district
court admitted evidence in violation of Rule 11-404(B). We decline to further review the

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matter. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110
P.3d 1076 (declining to entertain a cursory argument that relied on several factual assertions
that were made without citation to the record).

CONCLUSION

{42} For the foregoing reasons, we affirm Defendant’s conviction on all counts.

{43} IT IS SO ORDERED.

____________________________________
CELIA FOY CASTILLO, Chief Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
LINDA M. VANZI, Judge

Topic Index for State v. Soutar, No. 28,167

AE APPEAL AND ERROR
AE-SB Substantial or Sufficient Evidence

CM COMMERCIAL LAW
CM-FU Fraud
CM-SE Securities

CT CONSTITUTIONAL LAW
CT-DJ Double Jeopardy

CL CRIMINAL LAW
CL-FR Fraud
CL-RK Racketeering
CL-SO Securities Offences

CA CRIMINAL PROCEDURE
CA-DJ Double Jeopardy
CA-FO Final Order
CA-HC Habitual Criminal
CA-JS Judgment and Sentence
CA-JI Jury Instructions

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CA-PP Plea and Plea Bargaining
CA-PC Prior Convictions
CA-RP Reinstatement of Proceedings
CA-RE Restitution
CA-SN Sentencing
CA-SE Substantial or Sufficient Evidence
CA-SS Suspended Sentence

EV EVIDENCE
EV-PC Prior Convictions or Judgments

JI JURY INSTRUCTIONS
JI-CJ Criminal Jury Instructions
JI-FG Failure to Give or Request

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