I dissent.
Defendant, Linda Martinez, was convicted of fraud in the sale of real property to John and Kathrine Crosby in violation of § 30-16-6, N.M.S.A. 1978. It reads in pertinent part:
Fraud consists of the intentional misappropriation or taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations.
* * * * * *
Whoever commits fraud when the value of the thing misappropriated or taken exceeds twenty-five hundred dollars ($2,500) is guilty of a third degree felony.
The essential elements of this crime are (1) that defendant misrepresented a fact to the victim intending to deceive or cheat the victim, (2) because of the misrepresentation and the victims’ reliance on it, defendant obtained over $2,500, and (3) this money belonged to someone other than the defendant. U.J.I.Crim. 16.30.
Linda sold land to four buyers with the understanding that each purchaser would jointly share an undivided and unspecified interest in a portion of the land along the Vallecitos River, which portion is called “The Common Area.” “The Common Area” fronts on land purchased by Crosby, McConnell, Davis-Francis and Teal. A map of the land and “The Common Area” is attached here as an appendix. The L-shaped portion is “The Common Area” and is estimated at two acres in size. This common area is the basis of the fraud indictment because Linda misrepresented its ownership.
The land, exclusive of “The Common Area” was owned by five persons, one of which was Linda. The sale was effected and Crosby made a down payment of $22,-500 on a purchase price of $76,500. A quitclaim deed of “The Common Area” was submitted to Crosby, but it was invalid.
“The Common Area” was valued at $800 per acre or $1,600 and Crosby’s interest was valued at $400. No other evidence was presented as to any loss, detriment or injury suffered by Crosby. Except for “The Common Area,” Crosby received everything bargained for.
The only question to decide is:
Because of the misrepresentation and Crosby’s reliance on it, did Linda obtain over $2,500 that belonged to Crosby?
In essence, § 30-16-6 is an offense of deceiving or cheating by false pretenses.
At common law obtaining money by false representation of a fact was not a crime. [Citation omitted.] This being true, many States * * * early passed statutes for the purpose of preventing perpetration of flagrant frauds, and these statutes have been denominated * * * as a false pretense statute. In construing these statutes their construction must be strict and nothing which is not within the plain words of the statute will be given meaning against a defendant, but there will be a liberal construction in favor of the defendant. Mullican v. State, 210 Tenn. 505, 360 S.W.2d 35, 38 (1962).
To “cheat” a victim is to defraud, deceive or swindle the victim out of something of value. To defraud a victim requires proof of a loss, detriment or injury to the victim. Baskerville v. State, 23 Md.App. 439, 327 A.2d 918 (1974); Tumminello v. State, 10 Md.App. 612, 272 A.2d 77 (1971); Daniel v. State, 63 Ga.App. 12, 10 S.E.2d 80 (1940); McGhee v. State, 97 Ga. 199, 22 S.E. 589 (1895); State v. Gerich, 138 Conn. 292, 83 A.2d 488 (1951); State v. Palmer, 50 Kan. 318, 32 P. 29 (1893); Walker v. State, 89 Ga.App. 101, 78 S.E.2d 545 (1953); Bruce v. State, 217 Miss. 368, 64 So.2d 332 (1953).
In Palmer, the court said:
The mere obtaining of money under false pretenses does not alone constitute a crime. The money must be obtained to the injury of some one. Though money is obtained by misrepresentation, if no injury follows, no crime is accomplished. In this case the defendant was undoubtedly guilty of many flagrant misrepresentations and other dishonest acts; but if all such misrepresentations and dishonorable acts did not actually result in injury to McClelland, she cannot be convicted in this state simply because, upon the face of things, she is bad. [Emphasis added.] [32 P. at 30.]
The only way in which a defendant can obtain over $2,500 from a victim by misrepresentation is to cause the victim to suffer a loss, detriment or injury in excess of $2,500.
The State attempted to establish this loss by evaluating the land and “The Common Area” as one purchase and the monetary loss to the land by reason of the loss of “The Common Area,” but the expert testimony was stricken from the record. In other words, the State failed to prove that Linda cheated Crosby and obtained more than $2,500 thereby.
Judge Lopez relies upon State v. Forshee, 588 P.2d 181 (Utah 1978). The Utah statute reads in pertinent part:
“(1) A person commits theft if he obtains or exercises control over property of another by deception and with a purpose to deprive him thereof.”
This statute is akin to larceny. It naturally follows that “ * * * the degree of the crime must be measured by the value of the property obtained by the defendant as a result of the deception, rather than the value of any property received by the victim.” [588 P.2d at 184.] “Accordingly,” the Lopez opinion says “because defendant and her partners received $20,000 from Francis and Davis and $22,500 from the Crosbys, we hold that there was sufficient evidence to establish fraud over $2,500.” These monies were not received as a result of the deception. They were down payments made on the purchase price. It does not establish fraud over $2,500.
Forshee relied upon People v. Ross, 25 Cal.App.3d 190, 100 Cal.Rptr. 703 (1972) in which the defendant was prosecuted for grand theft under Section 484 of the Penal Code. See also, State v. Aurgemma, 116 R.I. 1425,358 A.2d 46 (1976) where the false pretense statute is designated as “Larceny”; State v. Mills, 96 Ariz. 377, 396 P.2d 5 (1964) where the statute is designated as “Theft”; Stewart v. State, 256 Ark. 619, 509 S.W.2d 298 (1974) where the statute is designated as “Larceny.”
Under larceny, the pecuniary loss of a victim is immaterial.
This case should be reversed and Linda discharged.
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