 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   filing date.

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

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                  NO. 31,241

10 ADRIAN GONZALES,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 William G. Shoobridge, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VANZI, Judge.
 1        Defendant appeals his convictions for shoplifting over $2500 and conspiracy

 2 to shoplift. We proposed to affirm in a calendar notice, and we have received a

 3 memorandum in opposition to our notice and a motion to amend the docketing

 4 statement. We have duly considered Defendant’s arguments, but we find them

 5 unpersuasive. We deny the motion to amend the docketing statement. We affirm.

 6        Defendant claims that he did not “willfully take possession of or conceal any

 7 merchandise” with the intent to convert it without paying for it and he did not engage

 8 in a conspiracy to do so. [MIO 1] Defendant contends that there were several items

 9 that had no store tags and, without values for the items, the evidence was insufficient

10 to support the convictions. According to Defendant, the evidence showed that the

11 value of the stolen items was less than $2500, and therefore, the district court erred

12 in denying the instruction offered for shoplifting items under $2500.

13        The store manager testified that she used the computer database to find the retail

14 price of each item taken, but she could not say “what the actual sale price of each item

15 was” on the day of the theft. [MIO 5] There were items without store tags, but they

16 were items carried by the store. [MIO 9] The list price of an item presumptively

17 represents the seller’s determination of what a customer is willing to pay, and it is

18 prima facie proof of value. See State v. Contreras, 1996-NMCA-045, ¶ 6, 121 N.M.

19 550, 915 P.2d 306. Defendant could have rebutted the evidence by showing that the


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 1 store typically offers discounts for the merchandise. See id. There is nothing to

 2 indicate that Defendant offered such proof. Instead, Defendant seeks to eliminate

 3 from the total value of the merchandise all items that had no store tag. We propose

 4 to hold that the evidence presented, and not rebutted by Defendant, was sufficient to

 5 support the conviction. Accordingly, we propose to hold that it was not error to refuse

 6 Defendant’s proffered instructions describing a lower value for the merchandise.

 7        Defendant claims that there was insufficient evidence to show that he engaged

 8 in a conspiracy to commit shoplifting. Defendant claims that there was no evidence

 9 to show that he agreed with another, by words or acts, to commit the crimes. Based

10 on the docketing statement and the memorandum in opposition, the evidence showed

11 that Defendant entered the store with co-defendants, he stood near the entrance of the

12 store during the time that the items were stolen, he left the store with co-defendants,

13 he got into a car with co-defendants, and when the car was stopped, Defendant was

14 sitting on top of one of the stolen items. Although conspiracy requires an agreement,

15 an agreement can be found when there is a mutually implied understanding as shown

16 by cooperative actions of those charged with the crime. State v. Roper, 2001-NMCA-

17 093, ¶ 8, 131 N.M. 189, 34 P.3d 133. The agreement underlying a conspiracy need

18 not be verbal and can be shown by circumstantial evidence; the agreement can be

19 established by acts showing that Defendant knew of and participated in the plan to


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1 commit the offense. See State v. Gallegos, 2011-NMSC-027, ¶ 26, 149 N.M. 704, 254

2 P.3d 655. The evidence was sufficient to support Defendant’s conviction for

3 conspiracy.

4       For the reasons discussed in this opinion and in our calendar notice, we affirm

5 Defendant’s convictions.

6       IT IS SO ORDERED.

7                                       __________________________________
8                                       LINDA M. VANZI, Judge

9 WE CONCUR:



10 _________________________________
11 JONATHAN B. SUTIN, Judge



12 _________________________________
13 RODERICK T. KENNEDY, Judge




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