{1} Defendant Lawrence Caldwell challenges his convictions for forgery (issuing or transferring), in violation of NMSA 1978, § 30-16-10(B) (1963) (amended 2006), and fraud over $250, contrary to NMSA 1978, § 30-16-6 (1987) (amended 2006). On appeal, Defendant claims that his convictions were (1) based on insufficient evidence, (2) violative of Defendant’s protection against double jeopardy, and (3) based on improper jury instructions. We affirm Defendant’s convictions.
BACKGROUND
{2} In January 2004, Benjamin Nieves reported the theft of approximately twenty checks associated with an account he held at Citizen’s Bank for his company, New Mexico Roofing & Sheet Metal, Air Conditioning and Mechanical. One of the stolen checks, bearing a signature Nieves claimed was not his own, was made out to “Lawrence Caldwell” and was cashed at a Lowe’s grocery store in Clovis, New Mexico. According to the notations on the front of the check, the check was payment for “Labor” in the amount of $860.49.
{3} The State filed a criminal complaint against Defendant charging one count of forgery stemming from the conduct identified above. The State later filed an amended complaint adding a second count against Defendant for the crime of fraud over $250. Defendant was convicted on both counts and appealed. We affirm his convictions.
DISCUSSION
{4} Defendant argues three bases for reversing his convictions for fraud and forgery. First, Defendant requests that his conviction for fraud be vacated because his convictions under both the fraud and forgery statutes, for the single unitary act of cashing a stolen check, violate his protection from double jeopardy. Second, Defendant contends that the non-uniform instruction given to the jury on the charge of forgery was erroneous because it affirmatively instructed the jury that the check was a forged writing and that Defendant knowingly transferred it, thus removing essential elements of the crime of forgery from the jury’s consideration. Third, Defendant argues that the State presented insufficient evidence of the essential facts required for the jury to convict Defendant of either fraud or forgery, claiming that the State failed to prove that Defendant endorsed or cashed the cheek stolen from Nieves. We address each of these issues below.
I. Double Jeopardy
{5} The New Mexico Constitution protects criminal defendants against double jeopardy for the same offense. N.M. Const, art. II, § 15. “The right to be free from double jeopardy consist[s] of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” State v. Rodriguez,
{6} “We analyze a multiple punishment double jeopardy challenge under Swafford v. State,
1. Unitary Conduct
{7} We begin our analysis by determining whether Defendant’s conduct may reasonably be viewed as one distinct act or transaction. See id. ¶27. In making this determination, we evaluate “separations in time or space, the similarity of the acts, their sequence, intervening events, and [Djefendant’s goals and mental state in the context of each act.” Id.; see also Swafford,
{8} In the present case, the State appears to concede that Defendant’s conduct was unitary, focusing its argument solely on the legislative-intent prong of the double description analysis. This Court, however, is not bound by the State’s concession and we conduct our own analysis as to whether Defendant’s conduct was unitary. See State v. Montoya,
{9} Defendant’s fraud and forgery convictions are based on a discrete act, not separated by time or space, and not distinguishable based on the nature, quality, or result of the act, or Defendant’s objective in performing the act. The conduct in question, the act of presenting the check to Lowe’s to be cashed and carrying away the proceeds of the check-cashing, provides no basis for determining that Defendant’s conduct was not unitary. See State v. Davis,
2. Legislative Intent
{10} The second prong of our inquiry under a double-description analysis is to determine if the legislature intended for the unitary conduct in question to be punished as separate offenses. The “sole limitation on multiple punishments is legislative intent.” Id. at 13,
Absent a clear expression of legislative intent, a court first must apply the Block-burger test to the elements of each statute. If that test establishes that one statute issubsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes—punishment cannot be had for both.
Id.
{11} In applying the Blockburger test, if we conclude that each statute requires proof of an element that the other does not, then a presumption arises that our legislature intended for the conduct to result in separately punishable offenses. See id. at 9, 14,
a. Applying Blockburger
{12} The Blockburger test “focuses strictly upon the elements of the statutes.” State v. Armendariz,
(1) that [the] defendant, by words or conduct, misrepresented a fact to the victim, intending to deceive or cheat the victim; (2) because of the misrepresentation and the victim’s reliance on it, defendant obtained money or property; (3) the property belonged to someone other than [the] defendant; and (4) the property had a market value as specified.
State v. Higgins,
{13} The applicable version of the forgery statute provides for alternate means of prosecuting forgery based on:
A. falsely making or altering any signature to, or any part of, any writing purporting to have any legal efficacy ...; or
B. knowingly issuing or transferring a forged writing[.]
§ 30-16-10 (1963); see also State v. Orgain,
{14} In this case, Defendant was charged with a violation of Subsection (B) of the forgery statute—issuing or transferring. 1 Accordingly, we compare the elements of the fraud statute set forth above with the elements of Subsection (B) of the 1963 version of the forgery statute. Subsection (B) required the State to prove: (1) that Defendant gave or delivered to the victim a false writing, (2) that Defendant knew the writing was false, and (3) that Defendant intended to cheat or deceive the victim. See UJI 14-1644 NMRA; § 30-16-10(B) (1963).
{15} In comparing the two statutes, we look to see if each statutory offense requires proof of an element that the other does not. See Franco,
b. Rebutting the Blockburger Presumption
{16} Blockburger, however, does not mark the end of our inquiry. As noted above, the presumption that arises upon finding that each statute possesses different elements can be rebutted by other indicia of legislative intent demonstrating that the legislature did not intend for the same course of conduct to be punished under both statutes. See Swafford,
{17} Turning to other indicia of legislative intent, we note that our courts have attributed different social purposes to the proscriptions against fraud and forgery. This Court has previously remarked that the fraud statute “is designed to protect persons and companies from being defrauded of valuable property by the misrepresentations of others.” Higgins,
{18} It also appears that, applying a common sense approach, the fraud and forgery statutes would often be violated together. Both fraud and forgery require a misrepresentation and the intent to defraud. See UJI 14-1640 NMRA; UJI 14-1644. Although the fraud statute encompasses misrepresentations beyond those intended by the forgery statute, the similarity between the statutes suggests that when a violation of the fraud statute is based on a writing purporting to have legal efficacy, there will be a violation of the forgery statute as well. However, this does not indicate a legislative intent against multiple punishment because “[t]he fact that each statute may be violated independent of the other ... lend[s] support to the imposition of sentences for each offense.” State v. Sosa,
{19} Finally, the quantum of punishment ascribed to each offense is also probative of legislative intent. See Swafford,
{20} Defendant’s reliance on Montoya,
II. Jury Instructions
{21} Defendant contends that the trial court erred by improperly instructing the jury with respect to the forgery charge and asks this Court to reverse his conviction for forgery and remand the matter for a new trial. According to Defendant, the trial court delivered an instruction that deviated from the uniform jury instruction on forgery, UJI 14-1644, and affirmatively instructed the jury that the check was a forged writing, thereby removing an essential element from the jury’s consideration. The State, however, contends that the instruction given to the jury tracks the language contained in the statute and includes each of the statutory elements of forgery.
A. Standard of Review
{22} “The standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved we review the instructions for reversible error. If not, we review for fundamental error.” State v. Benally,
B. Fundamental Error
{23} Our Supreme Court promulgated a uniform jury instruction that states the essential elements of the crime of forgery as defined by Section 30-16-10(B) (1963). The uniform jury instruction provides:
For you to find the defendant guilty of forgery [as charged in Count -], the state must prove to your satisfaction beyonda reasonable doubt each of the following elements of the crime:
1. The defendant gave or delivered to - (name of victim) a - (name of writing) knowing it to [be a false —] [have a false signature] [have a false endorsement] [have been changed so that its effect was different from the original or genuine] intending to injure, deceive or cheat - (name of victim) or another;
2. This happened in New Mexico on or about the — day of-,-.
UJI 14-1644 (emphasis and Use Notes omitted). The trial court did not instruct the jury in accordance with UJI 14-1644, but instead gave the following jury instruction submitted by the State:
For you to find [Defendant guilty of forgery as charged in Count 1, the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. [Defendant knowingly issued or transferred a forged writing with intent to injure or defraud Lowe’s, or Citizen’s Bank, or Benjamin E. Nieves, or another;
2. This happened in New Mexico on or about the 18th day of January, 2004.
{24} When a uniform jury instruction exists, that instruction must be used without substantive modification. See State v. Ellis,
{25} Comparing the instruction given in this case with the uniform jury instruction promulgated by our Supreme Court, we fail to see any material difference, missing elements, or language lending itself to juror confusion that would rise to the level of fundamental error. The instruction that was given accurately tracks the language of the forgery statute. Jury instructions that “substantially follow the language of the statute or use equivalent language” do not constitute fundamental error. See State v. Doe,
{26} Defendant relies on State v. Bonham,
III. Sufficiency of Evidence
{27} Defendant claims there was insufficient evidence to allow a reasonable jury to conclude that the State had proved the essential facts required for a fraud or forgery conviction beyond a reasonable doubt. Specifically, Defendant asserts that the State failed to establish that it was Defendant who presented the check for cashing or that Defendant had any knowledge that the check was not authentic.
A. Standard of Review
{28} When a claim of insufficient evidence is made, this Court views the evidence in the light most favorable to the verdict, resolving all conflicts and indulging all permissible inferences to uphold the conviction, and disregarding all evidence and inferences to the contrary. State v. Rojo,
B. Defendant’s Forgery Conviction
{29} A substantial evidence review requires an analysis of both direct and circumstantial evidence and a determination whether the evidence supports “a verdict of guilt beyond a reasonable doubt with respect to every element essential for conviction.” State v. Kent,
{30} With respect to the crime of forgery, the jury was instructed that, in order to find Defendant guilty, the State was required to prove “[Djefendant knowingly issued or transferred a forged writing with intent to injure or defraud Lowe’s, or Citizen’s Bank, or Benjamin E. Nieves, or another,” and the event occurred on or about January 18, 2004. There must be substantial evidence that Defendant was the person who issued or transferred the check to Lowe’s, that the check was forged, 'that Defendant knew the check was forged, and that Defendant intended to injure or defraud Lowe’s, Citizen’s Bank, Nieves, or another. See State v. Sarracino,
{31} Regarding the evidence introduced at trial on the check’s authenticity, the State presented the testimony of Nieves, in which Nieves stated that he had not written the check made out to Defendant in exchange for labor; he did not use the account the check was drawn from to pay for business expenditures, including labor; he had never employed Defendant; and the signature on the check was not his. An employee of Citizen’s Bank confirmed that the signature on the
{32} The jury could have also reasonably inferred that Defendant was the person who transferred the forged check to Lowe’s. According to the testimony elicited at trial, there were notations on the front of the check indicating that the person cashing the check had presented identification with a driver’s license number and date of birth matching that of Defendant. The State also presented testimony that the investigator had been informed by Lowe’s management that it was their policy to require identification prior to cashing a check and that the investigator had observed personnel at Lowe’s demand and examine identification before cashing a check on other occasions. The investigator testified that the endorsement on the back of the check read “Lawrence Caldwell” and resembled an exemplar of Defendant’s signature. When combined with testimony that businesses generally require identification prior to cashing a check, the jury could have reasonably inferred that the person who presented the check to Lowe’s was Defendant.
{33} It was also reasonable for the jury to conclude that Defendant possessed knowledge that the check was not authentic. “Guilty knowledge is rarely susceptible of direct and positive proof and generally can be established only through circumstantial evidence.” State v. Zarafonetis,
{34} Finally, we turn to the issue of intent. Like knowledge, a defendant’s intent is rarely subject to direct proof and may be proved by circumstantial, evidence. State v. Wasson,
C. Defendant’s Fraud Conviction
{35} Defendant also challenges the sufficiency of the evidence supporting his fraud conviction. Pursuant to the instruction provided to the jury, the State was required to prove (1) a misrepresentation of fact by word or conduct, (2) intent to deceive or cheat, and (3) due to the misrepresentation Defendant obtained anything of value worth more than $250 belonging to someone else.
{37} With respect to the other elements of fraud, there was substantial evidence to support the jury’s determination that Defendant’s misrepresentation was relied on and that Defendant had obtained property belonging to someone else /with a value over $250. Specifically, the evidence presented at trial established that a cashier at Lowe’s had exchanged the check for cash, that the cheek was written for an amount in excess of $250, and that the money did not belong to Defendant since it was drawn on Nieves’s account and Nieves testified that he had not employed Defendant or written a check to him in payment for labor. We therefore conclude that, viewed in the light most favorable to the verdict, there was substantial evidence on all the elements of fraud, sufficient to support Defendant’s conviction.
CONCLUSION
{38} We hold that Defendant’s convictions for fraud and forgery do not violate double jeopardy. We also conclude that there was sufficient evidence to support Defendant’s convictions and that no fundamental error occurred based on the forgery instruction tendered to the jury. We therefore affirm Defendant’s convictions.
{39} IT IS SO ORDERED.
Notes
. Under the 2006 amended version of Section 30-16-10, Subsection (B) was recodified as Subsection (A)(2).
. The amended version of the forgeiy statute, effective July 1, 2006, makes the degree of felony dependent on the quantifiable amount of damage inflicted. See § 30-16-10(B)-(E). This adds an element similar to the fraud statute's requirement for proof of the value of misappropriation. The amended version of the statute does not apply because Defendant was tried and sentenced prior to July 1, 2006.