{10} Without any citation to the UJIs or arguments that address the UJIs for grand jury proceedings, the State asserts that the statutory elements set forth in Section 30–16–8(A) are all that is required to be used when instructing the grand jury on a charge of embezzlement. Other than State v. Rodarte, 2011–NMCA–067, 149 N.M. 819, 255 P.3d 397, the relevant authorities cited by the State also predate the current version of UJI 14–8005 adopted by our Supreme Court in 2008. Although this Court previously addressed the need for definitional instructions to the grand jury, the case predates the current version of UJI 14–8005.
State v. Rodarte, 2011-NMCA-067, ¶ 10, 149 N.M. 819, 255 P.3d 397 (text QtAyf, Barber, 2004-NMSC-019, ¶ 19 (holding that whether a failure to provide a definitional instruction is fundamental error "begins at the same place as our analysis for reversible error").
In New Mexico, an "intent to defraud" has been equated with an intent to deceive or cheat. See State v. Rodarte, 2011-NMCA-067, ¶ 11, 149 N.M. 819, 255 P.3d 397 (construing, for the crime of fraudulent refusal to return leased property, "intent to defraud" as meaning "intent to cheat or deceive" (alteration, internal quotation marks, and citation omitted)); see also, e.g., UJI 14-1640 NMRA comm. cmt. (providing, for the crime of fraud, that " '[f]raudulent intent' and 'fraudulently' are frequently defined as 'with intent to defraud' or 'with intent to cheat or deceive' "). {35} In support of his sufficiency argument, Defendant challenges only one element—intent to defraud—and we limit our discussion accordingly. In particular, Defendant contends that the State did not prove he intended to deceive or cheat Tafoya or another (that being Hurricane).
Cunningham, 2000–NMSC–009, ¶ 13, 128 N.M. 711, 998 P.2d 176 (quoting State v. Garcia, 1942–NMSC–030, ¶ 25, 46 N.M. 302, 128 P.2d 459). “We will not ‘uphold a conviction if an error implicated a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.’ ” State v. Rodarte, 2011–NMCA–067, ¶ 10, 149 N.M. 819, 255 P.3d 397 (quoting State v. Barber, 2004–NMSC–019, ¶ 18, 135 N.M. 621, 92 P.3d 633). {9} When reviewing jury instruction issues for fundamental error, we first apply the standard for reversible error by determining if a reasonable juror would have been “confused or misdirected” by the jury instructions that were given.
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.