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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            NO. 32,157

 5 KATHLEEN WALSH,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Denise Barela Shepherd, District Judge


 9 Gary K. King, Attorney General
10 Ralph E. Trujillo, Assistant Attorney General
11 Albuquerque, NM

12 for Appellee

13 Jacqueline L. Cooper, Chief Public Defender
14 Jason M. Rael, Assistant Public Defender
15 Albuquerque, NM

16 for Appellant


17                                 MEMORANDUM OPINION

18 KENNEDY, Judge.
 1        Kathleen Walsh (Defendant) appeals her conviction for conspiracy to traffic

 2 methamphetamine—possession with intent to distribute—claiming there was

 3 insufficient evidence to convict her of the conspiracy charge. [RP 102; DS 4]

 4 Defendant was also convicted of possession of methamphetamine, but she does not

 5 challenge the sufficiency of the evidence to convict her of that crime. [DS 2-4] This

 6 Court issued a notice of proposed summary disposition proposing to reverse the

 7 conspiracy conviction, and the State has filed a timely memorandum in opposition to

 8 our proposed disposition. Having considered the arguments raised by the State in its

 9 memorandum and remaining unpersuaded, we reverse Defendant’s conviction for

10 conspiracy to traffic methamphetamine.

11        A sufficiency of the evidence review involves a two-step process. Initially, we

12 view the evidence in the light most favorable to the verdict, resolving all conflicts and

13 indulging all reasonable inferences in favor of the verdict. State v. Apodaca, 118

14 N.M. 762, 765-66, 887 P.2d 756, 759-60 (1994). We then make a legal determination

15 of whether the evidence viewed in this manner could justify a finding by a rational

16 trier of fact that each element of the crime charged has been established beyond a

17 reasonable doubt. Id. at 766, 877 P.2d at 760. We do not weigh the evidence or

18 substitute our judgment for that of the fact finder. State v. Mora, 1997-NMSC-060,

19 ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogated on other grounds as recognized by

                                               2
 1 Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683. Finally, we observe

 2 that “[j]ury instructions become the law of the case against which the sufficiency of

 3 the evidence is to be measured.” State v. Smith, 104 N.M. 729, 730, 726 P.2d 883,

 4 884 (Ct. App. 1986).

 5        In order to convict Defendant of conspiracy to traffic methamphetamine, the

 6 State had to prove, beyond a reasonable doubt, that Defendant and another person “by

 7 words or acts agreed together to [c]ommit [t]rafficking [b]y [p]ossession with [i]ntent

 8 to [d]istribute [m]ethamphetamine [and D]efendant and the other person intended to

 9 [c]ommit     [t]rafficking   [b]y   [p]ossession    with   [i]ntent   to   [d]istribute

10 [m]ethamphetamine[.]” [RP 80] See UJI 14-2810 NMRA; see also NMSA 1978, §

11 30-28-2(A) (1979) (defining the crime of conspiracy as “knowingly combining with

12 another for the purpose of committing a felony”). In our notice, we proposed to

13 reverse and to hold that there was insufficient evidence to establish an agreement

14 between Defendant and another person to traffic methamphetamine. [DS 4] See State

15 v. Stefani, 2006-NMCA-073, ¶ 34, 139 N.M. 719, 137 P.3d 659 (stating that, in order

16 to establish conspiracy, “[t]here must be an agreement between the parties to commit

17 the felony, either through explicit or a mutually implied understanding”).

18        The State does not dispute the evidence reviewed in our notice in support of the

19 conspiracy conviction. [MIO 3-6] There was evidence that a confidential informant



                                              3
 1 had purchased methamphetamine from “Erik” and that he did so again in a controlled

 2 buy set up by police officers. [MIO 3; DS 2-3] There was also evidence that

 3 Defendant and Erik lived in the house where the controlled buy occurred and that

 4 Defendant shared a bedroom with Erik. [MIO 4; DS 3]

 5        When the officers executed a search warrant at the residence, Defendant was

 6 found there along with three other persons, including Erik. [MIO 3; DS 3] There was

 7 evidence that a small amount of methamphetamine and drug paraphernalia were found

 8 in the room shared by Defendant and Erik on a night table that also contained

 9 Defendant’s driver’s license and identification. [MIO 4; DS 3] A larger amount of

10 methamphetamine was found hidden under a footstool in the living room where

11 Defendant was found. [MIO 4; DS 3] Erik fled when the officers arrived, and he was

12 found outside of the house on the roof, and a small amount of methamphetamine was

13 found outside of the bedroom window that Erik used to escape onto the roof. [MIO

14 4; DS 3]

15        The State does not dispute the observation in our notice that there was no

16 testimony from the police officers or the informant tying Defendant to the controlled

17 buy or any other purchase and sale of methamphetamine, including no testimony that

18 Defendant was even present during the drug sales. [MIO 3-6; DS 3] There was also

19 no testimony from the officers of any conversations between Defendant and Erik



                                             4
 1 concerning the possession or distribution of methamphetamine, and Defendant’s

 2 fingerprints were not on the paraphernalia found in the house. [MIO 3-6; DS 3]

 3        In its memorandum in opposition, the State urges us to reconsider our proposed

 4 disposition to reverse because it claims there was evidence in addition to that set forth

 5 in the docketing statement. [MIO 3-6] The State cites to multiple controlled buys in

 6 the house shared by Defendant and Erik. [MIO 4] It also notes that there was a pink

 7 digital scale in the drawer in the bedroom where Defendant’s driver’s license and

 8 other items commonly belonging to a woman were found. [MIO 4] The State further

 9 provides that the small baggie of methamphetamine found inside of the bedroom had

10 similar markings to the small baggie of methamphetamine found outside the window.

11 [MIO 4-5]

12        We are not convinced that this evidence, combined with that reviewed in our

13 previous notice, is sufficient to convict Defendant of conspiracy to traffic

14 methamphetamine—possession with intent to distribute. As previously stated, there

15 were no fingerprints tying Defendant to the scale found in the bedroom, and it is

16 undisputed that she shared that bedroom with Erik. [DS 3] Furthermore, to the extent

17 a small amount of methamphetamine can be tied to Defendant, this only supports her

18 conviction for possession of methamphetamine, which she does not challenge. [DS

19 2-4] However, there is nothing to tie her to the larger quantity of methamphetamine



                                               5
 1 found in the living room given that other people were present, and she shared the

 2 house with Erik who was known to traffic in methamphetamine. [MIO 4-6] See State

 3 v. Mariano R., 1997-NMCA-018, ¶ 4, 123 N.M. 121, 934 P.2d 315 (stating that “mere

 4 passive submission or acquiescence in the conduct of others” is insufficient to

 5 establish a conspiracy).

 6        Finally, although the State is correct that the requisite agreement can be

 7 established by circumstantial evidence, [MIO 7] see State v. Trujillo,

 8 2002-NMSC-005, ¶ 62, 131 N.M. 709, 42 P.3d 814, our review of the evidence fails

 9 to indicate that sufficient circumstantial evidence was introduced in this case.

10        In light of the lack of evidence suggesting any agreement between Defendant

11 and Erik, or any other person, we disagree with the State’s contention that the

12 evidence reflects that Defendant and Erik agreed to commit trafficking by possession

13 with intent to distribute methamphetamine. [MIO 7] Cf. Stefani, 2006-NMCA-073,

14 ¶ 35 (holding that evidence showing that the defendant and another were found in the

15 trailer where the methamphetamine lab was discovered was insufficient to “establish

16 the mental state required for conspiracy”).

17        Therefore, for the reasons set forth in our notice of proposed summary

18 disposition and those discussed in this opinion, we reverse Defendant’s conviction for

19 conspiracy to traffic methamphetamine because there was insufficient evidence to



                                             6
1 establish an agreement between Defendant and another person to traffic

2 methamphetamine.

3       IT IS SO ORDERED.



4                                       _______________________________
5                                       RODERICK T. KENNEDY, Judge


6 WE CONCUR:



7 _________________________________
8 CELIA FOY CASTILLO, Chief Judge



 9 _________________________________
10 JONATHAN B. SUTIN, Judge




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