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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. 33,830

 5 APRIL PADILLA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 William G.W. Shoobridge, District Judge

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

11 for Appellee

12   Law Offices of the Public Defender
13   Jorge A. Alvarado, Chief Public Defender
14   Kathleen T. Baldridge, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 SUTIN, Judge.
 1   {1}   Defendant filed a docketing statement, appealing from her conviction of

 2 conspiracy to commit shoplifting (over $2,500), a fourth degree felony, contrary to

 3 NMSA 1978, Sections 30-16-20 (2006) and 30-28-2 (1979). In this Court’s notice of

 4 proposed summary disposition, we proposed to affirm. [CN 1] Defendant filed a

 5 memorandum in opposition. [MIO] We have given due consideration to the

 6 memorandum in opposition, and remaining unpersuaded, we affirm Defendant’s

 7 conviction.

 8   {2}   Defendant continues to argue that there was insufficient evidence to sustain her

 9 conviction. [MIO 6] In support of her argument, Defendant contends, in pertinent

10 part, that “[t]he State was required to further prove the elements of [s]hoplifting which

11 requires the State to prove beyond a reasonable doubt that [Defendant] transferred

12 several [i]Pads from the container in which they were displayed to another container[

13 and] the merchandise had a market value of over $2,500.00[.]” [MIO 7] Defendant

14 additionally continues to argue that she did not know that shoplifting was occurring

15 until after it was complete. [MIO 8] In other words, by her memorandum in

16 opposition, Defendant clarifies her argument that the State did not present sufficient

17 evidence to support the jury’s finding that Defendant (1) shoplifted [MIO 7]; (2) knew

18 about the shoplifting until after it was complete, and therefore, agreed to and intended




                                               2
 1 to shoplift [MIO 8]; and (3) intended that Walmart be deprived of over $2,500 worth

 2 of merchandise. [MIO 9-11]

 3   {3}   First, in our calendar notice we briefly addressed the mistaken premise of

 4 Defendant’s claim that there was insufficient evidence to support a jury finding that

 5 Defendant shoplifted. [MIO 7; CN 3] We stated that the jury was not required to find

 6 that Defendant took possession of any items while in Walmart and that, in fact,

 7 Defendant was only charged with conspiracy to shoplift. [DS 1; RP 1; CN 3] We

 8 now reiterate that because Defendant was not charged with shoplifting, the jury was

 9 not required to find that Defendant transferred the iPads or shoplifted. [RP 1, 77; see

10 RP 78]

11   {4}   Nonetheless, because Defendant was charged with conspiracy to shoplift, the

12 elements for shoplifting were included in the jury instructions, including as its first

13 element that “the defendant transferred several [i]pad[s] . . . from the container in

14 which they were displayed to another container[.]” [RP 78] We recognize that the

15 shoplifting-elements instruction was poorly drafted and tends to indicate that the jury

16 may have been required to find that Defendant herself committed the shoplifting.

17 However, we again stress that “conspiracy” merely “consists of knowingly combining

18 with another for the purpose of committing a felony within or without this state.”

19 Section 30-28-2(A).     Nowhere in the statute defining “conspiracy” is there a


                                              3
 1 requirement that the defendant also commit the felony itself. See § 30-28-2.

 2 Likewise, the jury instructions did not require the jury to find that Defendant

 3 committed the actual shoplifting in order to find Defendant guilty of conspiracy to

 4 shoplift. [See RP 77] Although the jury instruction defining the shoplifting elements

 5 was vague with regard to the shoplifter identified therein and was arguably confusing

 6 as a result thereof, see § 30-16-20(A)(4) (defining “shoplifting” as “willfully

 7 transferring merchandise from the container in or on which it is displayed to another

 8 container with the intention of depriving the merchant of all or some part of the value

 9 of it”), Defendant failed to object to the wording of the instruction at trial and has,

10 accordingly, failed to preserve an argument regarding the jury instruction for appeal.

11 See Rule 12-216(B) NMRA; In re Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M. 641,

12 996 P.2d 431 (stating that, on appeal, the reviewing court will not consider issues not

13 raised in the district court unless the issues involve matters of jurisdictional or

14 fundamental error).

15   {5}   This is not a case involving fundamental error. Defendant is not indisputably

16 innocent. Nor does the mistake make the conviction fundamentally unfair. See State

17 v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633 (providing that

18 fundamental error only occurs in “cases with defendants who are indisputably

19 innocent, and cases in which a mistake in the process makes a conviction


                                              4
 1 fundamentally unfair notwithstanding the apparent guilt of the accused”). We

 2 conclude that there was sufficient evidence for the jury to have convicted Defendant

 3 of conspiracy, as discussed more fully in this Opinion, so Defendant is not, as she

 4 claims, indisputably innocent of conspiracy.       The mistake does not make the

 5 conviction fundamentally unfair because a finding of conspiracy does not require a

 6 finding that the crime itself was committed.            See, e.g., State v. Olguin,

 7 1994-NMCA-050, ¶ 36, 118 N.M. 91, 879 P.2d 92 (“[W]e now . . . uphold the

 8 conviction for conspiracy, notwithstanding that one of the underlying crimes may not

 9 have been supported by sufficient evidence.”), aff’d in part, 1995-NMSC-077, 120

10 N.M. 740, 906 P.2d 731. Whether the jury considered and/or determined that

11 Defendant herself actually transferred the iPads from their original packaging to the

12 cart/her purse is irrelevant to the conspiracy charge and, thus, harmless. Accordingly,

13 the arguably confusing jury instruction defining the shoplifting elements is, at best,

14 harmless error.

15   {6}   Second, we address Defendant’s continued argument that there was insufficient

16 evidence to support a finding that Defendant knew about the shoplifting until after it

17 was complete, and therefore, that Defendant agreed to and intended to commit

18 shoplifting. [MIO 8] As we stressed in our calendar notice, in order to convict

19 Defendant of conspiracy to shoplift, the jury was required to find, in pertinent part,


                                              5
 1 that Defendant and another person by words or acts agreed together to and intended

 2 to commit shoplifting, with the act of shoplifting described in the elements instruction.

 3 [RP 77] Defendant’s memorandum in opposition provides this Court with a much

 4 more detailed picture of the evidence presented by both parties below than was

 5 provided in Defendant’s docketing statement.          See Rule 12-208(D)(3) NMRA

 6 (requiring the docketing statement to contain a summary of “all facts material to a

 7 consideration of the issues presented”). Nevertheless, as we explained in our calendar

 8 notice, “we must view the evidence in the light most favorable to the guilty verdict,

 9 indulging all reasonable inferences and resolving all conflicts in the evidence in favor

10 of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998

11 P.2d 176. “The relevant question is whether, after viewing the evidence in the light

12 most favorable to the prosecution, any rational trier of fact could have found the

13 essential elements of the crime beyond a reasonable doubt.” Id. (alteration, emphasis,

14 internal quotation marks, and citation omitted). “Substantial evidence review requires

15 analysis of whether direct or circumstantial substantial evidence exists and supports

16 a verdict of guilt beyond a reasonable doubt with respect to every element essential

17 for conviction.” State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86.

18   {7}   According to the memorandum in opposition, the following pertinent evidence

19 was presented at trial. Mr. Bookhammer testified that he went to Walmart on the date


                                               6
 1 in question, accompanied by Defendant and two other women. [MIO 1] Detective

 2 Porter testified that Mr. Bookhammer stated in his recorded interview (State’s Ex. 2)

 3 that he gave the unpackaged iPads to “the girls,” who then left the store without

 4 paying for them. [MIO 2] Detective Porter further testified that Walmart surveillance

 5 video showed all three women in the vicinity of the electronics section and near the

 6 shopping cart when Mr. Bookhammer placed the iPads in the cart. [MIO 3] Detective

 7 Porter additionally testified that Defendant stated in her recorded interview that she

 8 allowed one of the other women to use her purse to conceal and remove the iPads

 9 from Walmart. [MIO 3]

10   {8}   Viewing the evidence “in the light most favorable to the guilty verdict,

11 indulging all reasonable inferences and resolving all conflicts in the evidence in favor

12 of the verdict[,]” Cunningham, 2000-NMSC-009, ¶ 26, we conclude that there was

13 sufficient evidence of a direct or circumstantial nature, see Kent, 2006-NMCA-134,

14 ¶ 10, to uphold the jury’s findings that Defendant and Mr. Bookhammer and/or the

15 other women present, by words or acts, agreed to and intended to commit

16 shoplifting—transferring five iPads from the container in which they were displayed

17 to Defendant’s purse—on or about the date in question. [RP 77-78] To the extent that

18 Defendant believes the intermediate placement of the iPads in the shopping cart is

19 relevant [see MIO 8], we disagree. The fact that Mr. Bookhammer may have placed


                                              7
 1 the iPads into the cart before he or one of the women ultimately transferred the iPads

 2 to Defendant’s purse for removal from the store is inconsequential.

 3   {9}    Additionally, although Defendant presented evidence that contradicts Detective

 4 Porter’s testimony and testified herself that she did not conspire to steal the iPads, it

 5 was for the jury to resolve any conflict in the testimony of the witnesses and to

 6 determine where the weight and credibility lay. See State v. Salas, 1999-NMCA-099,

 7 ¶ 13, 127 N.M. 686, 986 P.2d 482; see also State v. Griffin, 1993-NMSC-071, ¶ 17,

 8 116 N.M. 689, 866 P.2d 1156 (“This court does not weigh the evidence and may not

 9 substitute its judgment for that of the fact finder so long as there is sufficient evidence

10 to support the verdict.” (internal quotation marks and citation omitted)). “Contrary

11 evidence supporting acquittal does not provide a basis for reversal because the jury

12 is free to reject [the d]efendant’s version of the facts.” State v. Rojo, 1999-NMSC-

13 001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

14   {10}   Finally, with regard to Defendant’s argument that there was insufficient

15 evidence to uphold a finding that she conspired to shoplift merchandise worth more

16 than $2,500, we are unpersuaded. Defendant stated in her memorandum in opposition

17 that Mr. Bookhammer removed five iPads, each valued at anywhere from $500 to

18 $800, from the display case. [MIO 8] As there was sufficient evidence for the jury

19 to conclude that Defendant conspired to shoplift the iPads, and as the five iPads taken

                                                8
 1 were worth, collectively, anywhere from $2,500 to $4,000, we conclude that the

 2 evidence was sufficient to support the contested finding. See Cunningham, 2000-

 3 NMSC-009, ¶ 26 (stating that we view the evidence “in the light most favorable to the

 4 guilty verdict, indulging all reasonable inferences and resolving all conflicts in the

 5 evidence in favor of the verdict”).

 6   {11}   As there is no contention or evidence to suggest that the events did not occur

 7 on or about the date in question; that Walmart was not offering the iPads for sale to

 8 the public in a store; or that the shoplifter, by his shoplifting, did not intend to deprive

 9 Walmart of all or some part of the value of this merchandise [RP 77, 78], we conclude

10 that there was sufficient evidence to support Defendant’s conviction of conspiracy to

11 shoplift. Accordingly, for all the reasons stated in this Opinion and detailed in this

12 Court’s notice of proposed summary disposition, we affirm Defendant’s conviction

13 of conspiracy to commit shoplifting.

14   {12}   IT IS SO ORDERED.

15                                           __________________________________
16                                           JONATHAN B. SUTIN, Judge


17 WE CONCUR:


18 _______________________________
19 LINDA M. VANZI, Judge

                                                9
1 _______________________________
2 J. MILES HANISEE, Judge




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