 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 30,837

10 ERIC MUNOZ,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
13 Freddie J. Romero, District Judge

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

16 for Appellee

17 Chief Public Defender
18 Nina Lalevic, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VIGIL, Judge.

23          Defendant appeals his convictions for aggravated battery, conspiracy to commit

24 aggravated battery, and shooting at or from a motor vehicle. In this Court’s notice of
 1 proposed summary disposition, we proposed to affirm. Defendant has filed a motion

 2 to amend the docketing statement and a memorandum in opposition to this Court’s

 3 proposed summary disposition, both of which we have duly considered. As we are

 4 not persuaded by Defendant’s arguments, we deny the motion to amend and we

 5 affirm.

 6 Motion for a Mistrial

 7        Defendant contends that the district court erred in denying his motion for a

 8 mistrial after a witness commented that the police had tried to interview Defendant.

 9 [DS 6, 8] In this Court’s notice of proposed summary disposition, we proposed to

10 hold that the district court did not abuse its discretion in denying the motion because

11 it appeared that the witness spontaneously made the statement, that the prosecutor did

12 not directly ask any questions that a jury would naturally and necessarily have taken

13 to be comments on Defendant’s exercise of his right to remain silent, and that the

14 prosecution did not attempt to take advantage of the witness’s spontaneous statement

15 by asking related questions or referring to Defendant’s silence in closing argument.

16 Under such circumstances, we have held that reversal is not warranted. See State v.

17 Wildgrube, 2003-NMCA-108, ¶¶ 23-24, 134 N.M. 262, 75 P.3d 862 (holding that

18 when a witness made an unsolicited comment regarding the defendant’s post-Miranda

19 silence and the prosecutor did not exploit the reference by asking related questions or

20 referring to it in closing argument, reversal was not warranted); State v. Baca, 89 N.M.

                                              2
 1 204, 205, 549 P.2d 282, 283 (1976) (holding that reversal was not warranted when a

 2 witness made an isolated, unsolicited comment referring to the defendant’s post-

 3 Miranda refusal to speak with the police).

 4        Defendant’s memorandum in opposition provides no new facts or authority that

 5 would persuade this Court that its proposed disposition was erroneous, instead arguing

 6 that the witness’s statement “was clearly a significant factor in convicting” Defendant

 7 because Defendant testified at trial in a manner favorable to himself and the jury

 8 nevertheless found him guilty. [MIO 16] We are not persuaded that Defendant’s

 9 view of the evidence warrants a departure from Wildgrube and Baca. Accordingly,

10 we conclude that the district court did not abuse its discretion.

11 Sufficiency of the Evidence of Conspiracy to Commit Aggravated Battery

12        Defendant contends that there was insufficient evidence to support his

13 conviction for conspiracy to commit aggravated battery. [DS 8] In our notice of

14 proposed summary disposition, we proposed to hold that there was sufficient

15 circumstantial evidence of a conspiracy. See State v. Roper, 2001-NMCA-093, ¶ 8,

16 131 N.M. 189, 34 P.3d 133 (stating that the agreement that constitutes the conspiracy

17 “can be nothing more than a mutually implied understanding that can be proved by the

18 cooperative actions of the participants involved.”); see also State v. Mead, 100 N.M.

19 27, 30, 665 P.2d 289, 292 (Ct. App. 1983) (stating that conspiracy need not be proven

20 by direct evidence of an agreement), rev’d in part on other grounds sub nom. State v.

                                              3
 1 Segotta, 100 N.M. 498, 499, 672 P.2d 1129, 1130 (1983); State v. Dressel, 85 N.M.

 2 450, 451, 513 P.2d 187, 188 (Ct. App. 1973) (stating that conspiracy is seldom

 3 susceptible of direct proof and may be proven by inference from circumstantial

 4 evidence).

 5        In Defendant’s memorandum in opposition, he relies on the facts that are most

 6 favorable to himself and argues that no reasonable juror could determine that the

 7 evidence in this case supports a conviction for conspiracy to commit aggravated

 8 battery. [MIO 18-19] However, as Defendant acknowledges, this Court is required

 9 to view the evidence “in the light most favorable to the guilty verdict, indulging all

10 reasonable inferences and resolving all conflicts in the evidence in favor of the

11 verdict,” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176,

12 and a reviewing court is not required to consider evidence that may have supported

13 a verdict to the contrary, State v. Vigil, 110 N.M. 254, 256, 794 P.2d 728, 730 (1990).

14 Accordingly, we conclude that under this standard of review, the evidence was

15 sufficient.

16 Double Jeopardy

17        Defendant contends that his convictions for aggravated battery and conspiracy

18 to commit aggravated battery should have merged. [DS 8] In our notice of proposed

19 summary disposition, we proposed to find no error. This Court has previously held

20 that convictions of a substantive offense and a conspiracy to commit the substantive

                                              4
 1 offense do not violate double jeopardy. State v. Smith, 102 N.M. 512, 515, 697 P.2d

 2 512, 515 (Ct. App. 1985) (“[D]ouble jeopardy is no defense to convictions for a

 3 substantive offense and a conspiracy to commit that offense.”); State v. Armijo, 90

 4 N.M. 12, 15-16, 558 P.2d 1151, 1154-55 (Ct. App. 1976). Defendant’s memorandum

 5 in opposition addresses this issue only cursorily and acknowledges that Smith and

 6 Armijo are contrary to his position. [MIO 14] Accordingly, we conclude that

 7 Defendant’s convictions did not violate double jeopardy.

 8 Ineffective Assistance of Counsel

 9        Defendant’s memorandum states that he abandons the claim of ineffective

10 assistance of counsel raised in his docketing statement. [MIO 19-20]

11 Motion to Amend the Docketing Statement

12        Defendant moves to amend the docketing statement to add an argument that his

13 convictions for aggravated battery and shooting at or from a motor vehicle violate the

14 constitutional prohibition against double jeopardy. [MIO 6-13] We deny Defendant’s

15 motion because the issue is not viable. See State v. Sommer, 118 N.M. 58, 60, 878

16 P.2d 1007, 1009 (Ct. App. 1994) (denying a motion to amend the docketing statement

17 based on a conclusion that the motion and the argument offered in support of the

18 motion were not viable). Defendant acknowledges that our Supreme Court has held

19 that convictions for aggravated battery and shooting at or from a motor vehicle arising

20 from unitary conduct does not violate the prohibition against double jeopardy. See

                                              5
1 State v. Dominguez, 2005-NMSC-001, ¶¶ 17-21, 137 N.M. 1, 106 P.3d 563. Although

2 Defendant argues that Dominguez was wrongly decided, he recognizes that this Court

3 is bound by the decision. [MIO 9]

4       Therefore, for the reasons stated in this opinion and in our notice of proposed

5 summary disposition, we affirm.

6       IT IS SO ORDERED.



7                                              _______________________________
8                                              MICHAEL E. VIGIL, Judge
9 WE CONCUR:



10 _________________________________
11 MICHAEL D. BUSTAMANTE, Judge



12 _________________________________
13 JAMES J. WECHSLER, Judge




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