| In December 2000, a Dona Ana County grand jury indicted Ellen Mercer, owner of Kitchen ‘N Bath Design in Las Cruces, New Mexico, on charges of defrauding six customers out of more than $90,000.
The grand jury accused Mercer of accepting the money, but failing to deliver the cabinetry and other items.
In March 2002, Mercer went to trial in Las Cruces District Court, accused of six counts of embezzlement/fraud between October 1998 and January 2000.
Danny Gamboa and his wife, Paula, testified that they paid $42,000 for kitchen cabinets, $10,525 for a granite counter top, and $3,442 for a stove hood, but nothing was ever delivered.
Scott and Terry Adams testified that they paid Mercer $29,726 for cabinets, but also never received them.
Daniel Loyd and his wife, Kimela Miller-Loyd testified they paid Mercer $6,500 for design work, but never received the plans.
In May 2000, Mercer filed for bankruptcy. The prosecution contended that Mercer knew the company was failing and diverted the money for personal use before filing for bankruptcy.
Mercer’s defense attorney contended Mercer never intended to defraud anyone. He sought to present testimony from satisfied customers who paid for and received cabinets and other kitchen and bath items during the same time period to show that she was not trying to bilk anyone, but simply had poor business judgment. The trial judge denied the request, saying that he did not want a “parade of witnesses who had bad and good experiences” with Mercer.
On March 15, 2002, the jury convicted Mercer of all six counts. She was sentenced to five years of probation and 200 hours of community service.
Attorney Brian Pori, who took over the case on appeal, argued that the ruling prohibiting Mercer from presenting evidence of satisfied customers was wrong.
In December 2004, the Court of Appeals of New Mexico agreed. The court vacated Mercer’s convictions and ordered a new trial, saying that the trial court “abused its discretion by refusing to allow defendant to present the testimony of at least one satisfied customer.”
The court noted that “in cases such as this one, in which the alleged fraudulent activity involves the acceptance of advance payments from customers while the business is experiencing financial difficulties, the trier of fact must determine whether the defendant's actions were motivated by poor business judgment or by an intent to wrongfully and criminally obtain funds from vulnerable customers.”
In December 2006, Mercer, represented by Pori, went to trial a second time. On December 5, 2006, after hearing from defense witnesses who had positive experiences with Mercer, the jury acquitted Mercer of all counts.
– Maurice Possley
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