dissenting.
I respectfully disagree with the majority’s determination that defendant’s conviction was supported by substantial evidence. Because of my conclusion that there was a failure of proof by the state that defendant violated the subject statute, I dissent.
The trial court concluded that, although defendant held a valid license as qualifying party for another company, such license did not operate to permit defendant to contract under a different name, even though the contract specifically provided that the licensed company would do the work for which a license was required. I disagree with the trial court’s conclusion. Because of my proposed disposition, it is not necessary to address the other issues raised by defendant.
In reviewing a judgment of conviction, this court must view the evidence in the light most favorable to the state, resolving all conflicts and indulging all permissible inferences to support the verdict. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). However, under the applicable law, we must consider all the evidence and determine whether any rational trier of fact could have found the state met its burden of proving each of the elements of the crime beyond a reasonable doubt. See State v. Sheets, 96 N.M. 75, 628 P.2d 320 (Ct.App.1981), quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also State v. Brown, 100 N.M. 726, 676 P.2d 253 (1984). Under the facts of this case, I do not believe the state met its burden; there was a failure of proof. In this connection, defendant was not required to prove anything whatsoever. Instead, it was incumbent upon the state, under its burden, to prove that defendant was not authorized to obligate Home Service Center under the subject contract. This element could not be left to speculation; nor was it defendant’s burden to come forward with evidence proving that Home Service Center was indeed liable under the contract.
The Construction Industries Licensing Act, NMSA 1978, Sections 60-13-1 to 60-13-58 (Repl.Pamp.1984), requires a person engaged in the business of contractor to be licensed. See § 60-13-12(A). It defines a contractor as “any person who undertakes, offers to undertake, or purports to have the capacity to undertake, by himself or through others, contracting.” § 60-13-3(A). The Act defines “person” to include “an individual, firm, partnership, corporation, association or other organization, or any combination thereof.” § 60-13-2(D). I interpret “person” in Section 60-13-2(D) to include an individual doing business under different names.
The state asserts that “[a] contractor is one who offers to undertake ‘by himself or through others’ to perform various construction work. Section 60-13-3(A) * * * * (emphasis added).” It then argues that Customcraft (as “contractor”) contracted to do remodeling through another, Home Service Center, and that Custom-craft is consequently a contractor and must therefore be licensed. In proposing this result, the state does not contest the fact that Home Service Center is properly licensed through defendant, as qualifying agent. However, it argues further that the Act requires both the principal contractor and the subcontractor to be licensed, see § 60-13-12(B); that the Act’s purpose is effected by requiring Customcraft to be separately licensed, since the Walkers could only institute a civil action against Customcraft for any breach of the contract, see § 60-13-4 and Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965), overruled on other grounds, Lakeview Investments, Inc. v. Alamogordo Lake Village, Inc., 86 N.M. 151, 520 P.2d 1096 (1974); and that the Act precludes the transfer of a license to another by permitting revocation of the transferred license as punishment, see §§ 60-13-18(A) and 60-13-23(K).
The purpose of the Act is to protect the public against incompetent construction and fiscal irresponsibility of contractors. § 60-13-4; Verchinski v. Klein, 105 N.M. 336, 732 P.2d 863 (1987). To this end, the Act requires licensing upon successful completion of an examination and proof of financial responsibility by the filing of a bond or a collateral assignment. Id.; §§ 60-13-16 and 60-13-48 to 60-13-49. This court must ascertain and give effect to the legislature’s intention; legislative intent is to be determined from the language used in the statute as a whole, and when the words used are free from ambiguity and doubt, no other means of interpretation should be resorted to. State v. Sinyard, 100 N.M. 694, 675 P.2d 426 (Ct.App.1983).
Section 60-13-2(D) states that, as used in the Construction Industries Licensing Act, “ ‘person’ includes an individual, firm, partnership, corporation, association or other organization, or any combination thereof.” The state’s interpretation of “contractor” in Section 60-13-3(A) avoids the effect of Section 60-13-2(D) on the meaning of contractor. I read “contractor” to incorporate the definition of “person” in Section 60-13-2(D). See State v. Sinyard. A statute is to be read to give effect to all of its provisions. White v. Sutherland, 92 N.M. 187, 585 P.2d 331 (Ct.App.1978). I conclude that “contractor,” as used in the Act, includes an individual doing business as different entities.
For this reason, I believe the purpose of the Act was not thwarted under the facts of this case, where defendant, doing business under two different names, was licensed under at least one of the names and this fact was disclosed to the Walkers. In these circumstances, the license, although in the name of only Home Service Center, was applicable to Customcraft Systems, as long as the work undertaken pursuant to the subject contract was included under the licensed classification. See § 60-13-12. To interpret the Act otherwise, as the majority has apparently done, is to involve oneself in “splitting hairs,” an action I prefer to avoid.
The state has not contended that defendant’s contractor’s license was inappropriate for the type of work undertaken for the Walkers. Nor did an improper transfer of a license occur under the circumstances here, as the state would have us believe. Additionally, because I consider Custom-craft Systems and Home Service Center simply as other names under which defendant was doing business, the separate licensing of contractors and subcontractors requirement argued by the state is irrelevant.
It is undisputed that Home Service Center was a duly licensed contractor, with defendant Sam S. Jenkins as the qualifying party. This was plainly disclosed in the contract. Thus, defendant complied with the intent and purposes of the Construction Industries Licensing Act. There was no evidence that defendant sought to insulate himself from the liabilities the Act was designed to impose on him. I would thus conclude that the “evil” the statute was intended to protect against did not encompass the specific facts and circumstances under which defendant and the Walkers entered into the subject contract. I fully realize that defendant’s unorthodox procedure and his motives for doing things the way he chose to may be suspect. But his questionable activities did not, in my view, rise to the level of a statutory violation.
I would thus hold, as a matter of law, that the state failed in its burden of proving beyond a reasonable doubt that defendant contracted without a license. Defendant’s conviction and the trial court’s restitution order should be reversed and the cause remanded for dismissal of the charge.