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


 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                         NO. 28,913

 5 FLORINDA DIXON,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Stephen Bridgforth, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                              MEMORANDUM OPINION

17 CASTILLO, Judge.

18        Defendant entered a conditional plea of no contest to shoplifting over $500,

19 reserving the right to appeal an evidentiary ruling of the court, and the court’s ruling
 1 that she would not be allowed lesser-included offense instructions. [RP 65, 70, 74-76;

 2 DS 4] Our notice proposed to affirm. Defendant responded with a memorandum in

 3 opposition. We have considered Defendant’s arguments, but are not persuaded by

 4 them. We affirm.

 5 BACKGROUND

 6        During opening statement, defense counsel presented Defendant’s theory of

 7 defense. She informed the jury that Defendant went with Defendant’s friend Leslie

 8 to Dillard’s and knew that Leslie often shoplifted. [DS 3] At Dillard’s, Defendant

 9 knew Leslie was shoplifting. Defendant also decided that she would shoplift and

10 concealed some items, apparently clothes, in her empty baby stroller. At that point

11 Leslie, without Defendant’s consent, also placed some clothes in Defendant’s stroller.

12 [DS 3-4] Defendant expressed some concern, but Leslie gave her a look that

13 Defendant interpreted to mean that she should just go along with it. Defendant was

14 unsure what to do, but she decided to leave the store with all of the items in the stroller

15 because she was afraid to be seen taking items out of the cart. She decided to leave

16 the store because she was “confused and unsure of exactly what Leslie was thinking.”

17 [DS 3] Defendant told the jury that the State would not provide any evidence about

18 what Defendant took and what Leslie took. [DS 3-4] Defense counsel asked the jury

19 to convict Defendant only for the items she willfully took—not for what Leslie took.


                                                2
 1 [DS 4] Defendant did not concede that she aided and abetted Leslie. [DS 4]

 2        After hearing Defendant’s opening statement, the court informed Defendant that

 3 it would uphold all objections from the State relating to which goods were placed in

 4 the stroller by which woman. [DS 4-5] The court also stated that it would not submit

 5 Defendant’s lesser-included offense instructions of shoplifting under $250 or

 6 shoplifting more than $250 but less than $500. [DS 4-5] After these rulings,

 7 Defendant entered a conditional plea of no contest, reserving the right to appeal them.

 8 DISCUSSION

 9 A.     Evidentiary Ruling

10        We review evidentiary rulings for an abuse of discretion. See State v.

11 Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. We review the court’s

12 ruling on lesser-included offense instructions as a mixed question of law and fact.

13 State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778, 945 P.2d 996 (“The propriety

14 of jury instructions given or denied is a mixed question of law and fact. Mixed

15 questions of law and fact are reviewed de novo.”). “In order to obtain an instruction

16 on a lesser included offense, ‘[t]here must be some view of the evidence pursuant to

17 which the lesser offense is the highest degree of crime committed, and that view must

18 be reasonable.’” State v. Brown, 1998-NMSC-037, ¶ 12, 126 N.M. 338, 969 P.2d 313

19 (quoting State v. Curley, 1997-NMCA-038, ¶ 5, 123 N.M. 295, 939 P.2d 1103).


                                              3
 1        Defendant argued below that Defendant and Leslie shoplifted separately, thereby

 2 making relevant any evidence regarding who took what items. [DS 5] In her docketing

 3 statement and memorandum in opposition, Defendant characterizes the court’s rulings

 4 as denying her the right to present a defense. [DS 6; MIO 4-8] She argues that evidence

 5 excluded by the court goes to “the heart of the defense’s case.” [MIO 8]

 6        Shoplifting consists of willfully taking possession of merchandise with the

 7 intention of converting it without paying for it, or concealing merchandise with the

 8 intention of converting it without paying for it. See NMSA 1978, § 30-16-20(A)

 9 (2006). We interpret “willfully” as connoting knowledge. See State v. Padilla, 2006-

10 NMCA-107, ¶ 34, 140 N.M. 333, 142 P.3d 921 (stating that “willfully” implies

11 knowledge), reversed on other grounds, 2008-NMSC-006, 143 N.M. 310, 176 P.3d

12 299; State v. Elmquist, 114 N.M. 551, 552, 844 P.2d 131, 132 (Ct. App. 1992) (stating

13 that the term “willful” has been defined as “requiring proof the person acted

14 intentionally in the sense that he was aware of what he was doing”).

15        Under State v. Armijo, 120 N.M. 702, 703, 905 P.2d 740, 741 (Ct. App. 1995),

16 where defendants are shoplifting and working together, each is responsible for the

17 total of all of the merchandise taken, regardless of whose bag the merchandise was in.

18 Armijo announces the principle that codefendants are responsible for the aggregate of

19 merchandise taken; their liability is not lessened by dividing up who took what item.


                                              4
 1 This is the principle underlying the court’s ruling.

 2        On the facts, as admitted by Defendant, we hold that the court correctly applied

 3 the principle established by Armijo. Defendant admitted that she herself was

 4 shoplifting, admitted knowledge that Leslie was shoplifting, admitted knowledge that

 5 Leslie had placed the additional items in her stroller, and admitted trying to leave the

 6 store with all of the items without paying for them. Thus, under Armijo, she would

 7 be responsible for all items. Evidence separating who took what is not relevant and

 8 does not provide a valid defense.

 9        If Defendant had claimed she did not know that Leslie placed the items in her

10 stroller, then Defendant’s argument separating who took what would appear to be

11 relevant because then it would relate to Defendant’s knowledge and whether she acted

12 willfully.   On these facts, however, Defendant admitted that she acted with

13 knowledge. Her claims that she was “confused and unsure of exactly what Leslie was

14 thinking” and afraid to take items out of her stroller because she might be observed

15 do not negate the element of knowledge when she admitted that she knew all of the

16 items were in her stroller when she attempted to leave the store.

17        As a general matter, we agree with Defendant that the right to present a defense

18 is fundamental. [MIO 4-8] But on these facts, the principle underlying Defendant’s

19 defense—that she was responsible only for the items she placed in the stroller—was


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 1 an incorrect statement of law and presented an invalid theory of defense. Therefore,

 2 the court correctly limited evidence relating to an incorrect statement of law and to an

 3 invalid theory of defense. The right to present a defense does not include the right to

 4 rely on an incorrect legal theory. Cf. State v. Nieto, 2000-NMSC-031, ¶ 17, 129 N.M.

 5 688, 12 P.3d 442 (holding that a defendant has no right to have a legally incorrect jury

 6 instruction read to the jury or to mislead the jury through a misstatement of the law).

 7 Consequently, the trial court’s limitation on Defendant’s presentation of evidence was

 8 correct, and we find no error.

 9 B.     Right to a Lesser-Included Offense Instruction

10        Defendant argues that because she only took some of the items amounting to

11 less than $500, she was entitled to two lesser-included offense instructions—one for

12 shoplifting $250 to $500 and one for shoplifting under $250. [MIO 9-11] We review

13 the propriety of jury instructions as a mixed question of law and fact. See State v.

14 Gaitan, 2002-NMSC-007, ¶ 10, 131 N.M. 758, 42 P.3d 1207. In deciding this issue

15 we consider the facts in the light most favorable to Defendant. See State v. Hill, 2001-

16 NMCA-094, ¶ 5, 131 N.M. 195, 34 P.3d 139.

17        Defendant’s argument is inextricably linked to the evidentiary claim we have

18 just addressed. For the same reasons, Defendant’s claim that she only took some of

19 the items, thereby reducing the value of the items taken, did not entitle her to lesser-


                                              6
 1 included offense instructions. On the facts, as admitted, she was liable for the

 2 aggregate amount of the items. As we have mentioned, our conclusion might be

 3 different if Defendant had claimed she did not know Leslie had placed the items in her

 4 stroller, but that was not Defendant’s claim. Because Defendant admitted that she was

 5 shoplifting herself, admitted that she knew about all of the items, and admitted that

 6 she tried to leave the store with them, the court was correct in concluding that her

 7 argument that she only took some of the items did not entitle her to lesser-included

 8 offense instructions. Under the circumstances, there was no view of the evidence to

 9 support a conclusion that the lesser offenses were the highest degree of crime

10 committed, and Defendant’s position, which relied on an incorrect legal theory, was

11 not reasonable. See Brown, 1998-NMSC-037, ¶ 12; Nieto, 2000-NMSC-031, ¶ 17

12 (stating that a trial court’s refusal to submit an instruction that promotes a

13 misstatement of law is not error).

14        For these reasons, we affirm.

15        IT IS SO ORDERED.



16                                               ________________________________
17                                               CELIA FOY CASTILLO, Judge




                                             7
1 WE CONCUR:



2 ________________________________
3 MICHAEL E. VIGIL, Judge



4 ________________________________
5 TIMOTHY L. GARCIA, Judge




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