                                                           I attest to the accuracy and
                                                            integrity of this document
                                                              New Mexico Compilation
                                                            Commission, Santa Fe, NM
                                                           '00'04- 15:53:35 2015.09.14
Certiorari Granted, August 26, 2015, No. 35,451

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-094

Filing Date: June 30, 2015

Docket No. 33,249

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

PATRICIA GARCIA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Daniel Viramontes, District Judge

Hector H. Balderas, Attorney General
Paula E. Ganz, Assistant Attorney General
Santa Fe, NM

for Appellee

McGraw & Strickland, LLC
Margaret Strickland
Las Cruces, NM

for Appellant

                                       OPINION

GARCIA, Judge.

{1}     A jury found Defendant Patricia Garcia guilty of two second degree felonies, fraud,
in violation of NMSA 1978, § 30-16-6(A), (F) (2006), and computer access with intent to
defraud, in violation of NMSA 1978, § 30-45-3(E) (2006). On appeal, Defendant argues,
among other things, that there was insufficient evidence presented to establish that the
alleged victim, Page Kent, relied on her misrepresentations about her marital status. We

                                            1
agree that this was a critical issue regarding the fraud allegations filed by the State. The State
did not ask Mr. Kent to testify about the reliance element of the fraud charge during Mr.
Kent’s testimony at trial. Instead, it attempted to establish the element of reliance by
inferences from the other evidence presented. We hold that the other evidence was
insufficient to permit an inference establishing reliance beyond a reasonable doubt. As a
result, we reverse both of Defendant’s convictions.

BACKGROUND

{2}     The following facts relevant to the issue we address on appeal were adduced at trial.
Defendant, a woman in her fifties, and Mr. Kent, a recently widowed man in his mid-
eighties, first met at the post office around May 2010. At this first meeting, Defendant told
Mr. Kent that she was not married and that she had been divorced several times. She asked
Mr. Kent for $5,000 to “have her breast work raised[,]” and Mr. Kent wrote her a check for
$5,000.

{3}     After this first meeting, Defendant and Mr. Kent “became friends.” Defendant took
Mr. Kent to his medical appointments and helped him with his personal finances. “After a
while,” Defendant asked Mr. Kent if she could use his bank account to help her pay for her
“children’s education[,]” “everyday things, . . . cars[,]” and to “help [her children’s] way of
life.” Defendant told Mr. Kent that she would “replace what she took.” Mr. Kent agreed, and
Defendant began accessing and transferring money from Mr. Kent’s accounts to her own
account in October 2010.

{4}    On December 15, 2010, and January 4, 2011, Mr. Kent made Defendant a joint
owner on his accounts. When the prosecutor asked Mr. Kent at trial “what caused” him to
make Defendant a joint owner on his accounts, Mr. Kent replied that he did so because
Defendant told him “it would be easier for her and her bookkeeping and also the contact with
money and then she would replace it.” On cross-examination, Mr. Kent also stated that he
put Defendant on his accounts because he “wanted to help her out” with “her family, . . . her
children, and . . . other things.” A New Mexico Adult Protective Services Department
caseworker who had interviewed Mr. Kent testified at trial that Mr. Kent told her that he
allowed Defendant to use his accounts because “he felt sorry for [Defendant] and that he was
helping her.”

{5}    Mr. Kent allowed Defendant to use his accounts “as she needed[,]” and although he
did not tell her she could use his money “carte blanche,” he did not expressly limit her
spending. Mr. Kent allowed Defendant to access his accounts over the computer.

{6}     On January 20, 2011—a few months after Defendant began using Mr. Kent’s
accounts and about one month after Mr. Kent made Defendant a joint owner on his
accounts—Defendant married a man named Jerry Marquez, whom she divorced about a year
later on February 12, 2012. Defendant never told Mr. Kent that she had gotten married, that
she was romantically involved with anyone prior to this marriage, or that Mr. Marquez was

                                                2
more than a “friend.” Indeed, when Defendant arranged to have Mr. Marquez work on Mr.
Kent’s roof in May 2011, Defendant lied when she introduced Mr. Marquez to Mr. Kent as
her “gay friend” because she was married to Mr. Marquez at that time. The prosecutor asked
Mr. Kent at trial, “When you put [Defendant] on your accounts, did you know that you were
putting a married woman on your bank accounts?” Mr. Kent replied, “It was impossible
because I didn’t know it.”

{7}      In May 2011, representatives from Mr. Kent’s bank and a caseworker from the New
Mexico Adult Protective Services Department approached Mr. Kent about their concerns
with Mr. Kent’s dwindling bank accounts. Mr. Kent then stopped Defendant from accessing
his accounts when he discovered that his “money was going down, down, down,” and he
wanted to “curtail the action” on his accounts. However, after Mr. Kent and Defendant
“talked about it” and Defendant agreed to “slow down on it,” Mr. Kent resumed allowing
Defendant to access his accounts, but he did not make her a joint owner of his accounts
again. Instead, in October 2011, Mr. Kent named Defendant the beneficiary of his accounts,
which meant only that the money in Mr. Kent’s accounts would have gone to Defendant
upon Mr. Kent’s death. Although Defendant’s use of Mr. Kent’s accounts “quieted down a
little bit[,]” it eventually “went back to the same old way.” The money in Mr. Kent’s
accounts “went down again” and Defendant “didn’t respect it[.]”

{8}    Mr. Marquez testified that sometime in January 2012 he told Mr. Kent that he was
married to Defendant and that Mr. Kent “was shocked.” However, when the prosecutor
asked Mr. Kent how he learned that Defendant was married, Mr. Kent replied, “Well, it
wasn’t [Mr. Marquez].” The last time that Defendant took money from Mr. Kent’s accounts
was on February 14, 2012. On February 18, 2012, Mr. Kent removed Defendant as the
beneficiary of his accounts.

{9}      The prosecutor asked Mr. Kent at trial, “What caused you to finally take [Defendant]
off your accounts permanently?” Mr. Kent replied, “The bank—they kept hounding me,
‘You have problems Mr. Kent,’ . . . and my money in the bank . . . was down.” Mr. Kent also
testified that after “the sheriff’s representatives came out and talked” to him is “when things
started with [his] degeneration of [his] . . . contact with [Defendant].” He said that he “ended
up taking her name off of everything” because he “finally woke up to see what was really
happening to [his] money,” and that “after a while it got so bad . . . [he] had to stop it.” When
defense counsel asked Mr. Kent why, other than the first time he met Defendant, he did not
ask Defendant any details about her personal romantic life over the course of their
friendship, Mr. Kent replied that such details were “pertinent, very pertinent now, but I
didn’t even think of it ‘cause she said she was not [married].”

{10} On February 21, 2012, Mr. Kent filed a fraud complaint with his bank. At some
point, Mr. Kent and a friend of his notified the police.

{11} At trial, the prosecutor repeatedly asked Mr. Kent to elaborate on the nature of his
relationship with Defendant and how Mr. Kent viewed this relationship. Mr. Kent repeatedly

                                               3
replied that he and Defendant were friends, even though he admitted to having had a
romantic interest in her that “meant more” than the interest that Defendant had in him:

       [PROSECUTOR:]        After you met [Defendant], what type of things would
                            you do together?


       [MR. KENT:]          Oh my, let’s see. We became friends and she . . . said,
                            ‘From now on I will take you to all the hospitals you
                            have to go to or doctors,’ and that was kinda the
                            starter. And she did. And we just had a pleasant
                            relationship.

       ....
       [PROSECUTOR:]        What else did you and her do? What other kind of
                            activities?

       [MR. KENT:]          Not much, really.
       [PROSECUTOR:]        What would you talk about? What kinds of things
                            would you and her talk about?

       [MR. KENT:]          [Laughs]
       [PROSECUTOR:]        What did you have in common? I guess that’s a way
                            of putting it. What did you and her have in common
                            that you liked to talk about?

       [MR. KENT:]          I guess, cars [laughs].
       [PROSECUTOR:]        What was the friendship based upon? . . . What type
                            of conversation would she have with you, Mr. Kent?
                            What sort of subjects would she bring up and talk
                            about with you?

       [MR. KENT:]          I guess, after a year or so we kind of looked a little
                            closer to ourselves and we just liked each other.

       [PROSECUTOR:]        How did you come to think of [Defendant] after a
                            time? You said you were friends, but after a while
                            how did you come to think of her? What did you think
                            of her in your mind as the relationship that you had
                            with her after a while?

       ....
       [MR. KENT:]           It was nice. Pleasant.
       [PROSECUTOR:]         Okay, but how would you describe her? What have

                                           4
                              you described her as in the past to people when you
                              were . . . getting along with her quite well? How had
                              you described her to other people? As your what?

       [MR. KENT:]            I guess, my friend. And my [pauses]—
       [PROSECUTOR:]          Your what?
       [MR. KENT:]            My friend, and uh, how will I say it—
       [PROSECUTOR:]          What are you trying to say?
       [MR. KENT:]            I’m trying to say that she meant more to me than what
                              I thought.

       [PROSECUTOR:]          When you say meant more to you though, in what
                              regard? Meant more to you in what way? ‘Cause we
                              have friends, you know, I mean, some people I might
                              just consider a friend, like an acquaintance or
                              someone that I might just see on the street and talk to.
                              Is that all that it was with [Defendant] in your mind?

       [MR. KENT:]             No.
       ....
       [PROSECUTOR:]          So, Mr. Kent, let me be just very blunt. Did you have
                              a romantic interest in [Defendant] at some point?

       [MR. KENT:]            Yes.
       [PROSECUTOR:]          So then in some ways you told people that you
                              regarded her as what to you?

       [MR. KENT:]            As my close friend, and I wouldn’t say quite a lover
                              ‘cause I’m eighty-six, eighty-seven years old. But it
                              was very nice and also . . . we were both content.

Although Mr. Kent did not testify that he thought of Defendant as his romantic partner, the
caseworker testified that Defendant knew that Mr. Kent thought of Defendant as his
“girlfriend.”

{12} The prosecutor did not ask Mr. Kent any questions about whether he relied on his
impression that Defendant was not dating or married to anyone during the time that he
allowed Defendant access to his bank accounts. The prosecutor did not ask Mr. Kent if he
gave Defendant access to his accounts because he thought of her as his romantic partner.
Furthermore, on cross-examination, when defense counsel asked Mr. Kent whether he had
been “tricked” into giving Defendant access to his account, Mr. Kent replied that he had not:

       [DEFENSE COUNSEL:]             You . . . granted [Defendant] access to that
                                      account, right?

                                             5
        [MR. KENT:]                     Yes.

        [DEFENSE COUNSEL:]              Nobody tricked you, nobody did anything to
                                        try and take advantage of you. . . . You did it
                                        freely and willingly, correct?

        [MR. KENT:]                     Right.

{13}    In his closing argument, the prosecutor asserted:

        [I]t’s hard for [Mr. Kent] to come out and say he thought that [Defendant] .
        . . was his girlfriend, but that’s what he thought about her, that’s how he
        thought of her, and she encouraged it. . . . by lying to Mr. Kent about who her
        husband was. . . . [and] she didn’t think that way about him.1

DISCUSSION

{14} The narrow question we must answer in this appeal is whether there was sufficient
evidence presented to establish beyond a reasonable doubt that Mr. Kent relied on
Defendant’s deception about her relationship and marriage status when he allowed
Defendant to use his money and access his accounts. For reasons we explain below, we
conclude that the evidence was insufficient.

A.      Elements of Criminal Fraud

{15} The crime of “[f]raud consists of the intentional misappropriation or taking of
anything of value that belongs to another by means of fraudulent conduct, practices or
representations.” Section 30-16-6(A). A misrepresentation for purposes of criminal fraud
may include a deceptive silence or omission. See State v. Stettheimer, 1980-NMCA-023, ¶¶
9-14, 94 N.M. 149, 607 P.2d 1167. As contained within our uniform jury instructions and
the jury instructions used in this trial, the state must also present evidence sufficient to prove
that “[b]ecause of the . . . victim[’s] reliance on [the misrepresentation], the] defendant
obtained [a thing of value].” UJI 14-1640 NMRA (emphasis added).

{16}    A critical inquiry in this appeal is what constitutes reliance. Although the jury in this


        1
         The prosecutor also asserted in his closing argument that Defendant’s asking Mr.
Kent for $5,000 for breast surgery upon their first meeting in May 2010, and then not having
the surgery, was the first instance of fraud. However, the jury instructions and Defendant’s
resultant conviction covered conduct occurring only between the dates of October 10, 2010,
and February 13, 2012. We assume this is why the State did not raise this issue in its answer
brief. The State confirmed at oral argument that Defendant’s May 2010 conduct should not
be considered in upholding her fraud conviction.

                                                 6
case was not instructed about how to determine whether Mr. Kent’s reliance on Defendant’s
misrepresentation caused Mr. Kent to allow Defendant to access his accounts, we find it
helpful to refer to UJI 14-134 NMRA in interpreting the legal requirements under which the
element of reliance must be proved in a criminal trial for fraud. Although not used in this
trial, UJI 14-134 is a criminal uniform jury instruction that “should be used in cases [other
than homicide] in which causation is an issue.” UJI 14-134 n.1 (emphasis added). UJI 14-
134 provides, in pertinent part:

       In addition to the other elements of the crime . . . , the state must also prove
       . . . beyond a reasonable doubt that[] . . . [t]he act of the defendant was a
       significant cause of the injury or harm. The defendant’s act was a significant
       cause of the injury or harm if it was an act which, in a natural and continuous
       chain of events, uninterrupted by an outside event, resulted in the injury or
       harm and without which the injury or harm would not have occurred.
       (Emphasis added.)

Thus, to sustain a fraud conviction, we conclude that the State must prove beyond a
reasonable doubt that without the defendant’s misrepresentation, the defendant would not
have obtained the thing of value. Id.; accord State v. Young, 1998 ME 107, ¶ 14, 711 A.2d
134, 137 (referring to the Maine Criminal Code’s definition of causation in determining the
nature of the causal relationship that must be proved in a theft by deception prosecution and
framing the issue as whether the defendant “would not have obtained the money but for his
deceptive act”); 3 Charles E. Torcia, Wharton’s Criminal Law § 427 (15th ed. 1995) (stating
that, in proving a defendant obtained money or property by false pretenses, it is not
“necessary . . . that the false representation be the paramount cause for the victim’s surrender
of his property; it is sufficient merely that the false representation be a cause without which
the victim would not have surrendered his property” (emphasis added)).

B.      Standard of Review and General Principles

{17} In conducting a sufficiency-of-the-evidence analysis, we review the evidence in the
light most favorable to the verdict “to determine whether substantial evidence of either a
direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt
with respect to every element essential to [the] conviction.” State v. Hornbeck, 2008-NMCA-
039, ¶ 33, 143 N.M. 562, 178 P.3d 847 (internal quotation marks and citation omitted). “We
do not re-weigh the evidence or substitute our judgment for that of the fact-finder, so long
as sufficient evidence supports the verdict.” Id. We remain mindful, however, that “evidence
that is sufficient to allow a rational juror to make a finding adverse to a defendant under a
lesser preponderance-of-the-evidence standard [of proof] will not necessarily suffice to allow
a rational factfinder to reach the subjective state of certitude required by the beyond-a-
reasonable-doubt standard.” State v. Garcia, 2004-NMCA-066, ¶ 9, 135 N.M. 595, 92 P.3d
41, rev’d in part on other grounds by State v. Garcia, 2005-NMSC-017, 138 N.M. 1, 116
P.3d 72. “[E]vidence equally consistent with two inferences does not, without more, provide
a basis for adopting either one—especially beyond a reasonable doubt.” Garcia, 2005-

                                               7
NMSC-017, ¶ 12 (internal quotation marks and citation omitted); see also Baca v. Bueno
Foods, 1988-NMCA-112, ¶ 15, 108 N.M. 98, 766 P.2d 1332 (“Evidence from which a
proposition can be derived only by speculation among equally plausible alternatives is not
substantial evidence of the proposition.”).

{18} “Although appellate courts are highly deferential to a jury’s decisions, it is the
independent responsibility of the courts to ensure that the jury’s decisions are supportable
by evidence in the record, rather than mere guess or conjecture.” State v. Slade, 2014-
NMCA-088, ¶ 14, 331 P.3d 930 (internal quotation marks and citation omitted). In State v.
Maes, this Court found the Second Circuit’s discussion in Goldhirsh Grp., Inc. v. Alpert, 107
F.3d 105, 108 (2d Cir. 1997) helpful in discerning the fine line that sometimes exists
between permissible inference and impermissible speculation:

       The line between permissible inference and impermissible speculation is not
       always easy to discern. When we ‘infer,’ we derive a conclusion from proven
       facts because such considerations as experience, or history, or science have
       demonstrated that there is a likely correlation between those facts and the
       conclusion. If that correlation is sufficiently compelling, the inference is
       ‘reasonable.’ But if the correlation between the facts and the conclusion is
       slight, or if a different conclusion is more closely correlated with the facts
       than the chosen conclusion, the inference is less reasonable. At some point,
       the link between the facts and the conclusion becomes so tenuous that we call
       it ‘speculation.’ When that point is reached is, frankly, a matter of judgment.

State v. Maes, 2007-NMCA-089, ¶ 18, 142 N.M. 276, 164 P.3d 975 (quoting Goldhirsh
Grp., Inc.,107 F.3d at 108).

D.     Analysis

1.     Timing of Defendant’s Deception and Mr. Kent’s Decision to Allow Her Access
       to His Accounts

{19} We begin our analysis by noting that at the time that Mr. Kent began allowing
Defendant to access his accounts for her own purposes in October 2010 and at the time he
made her a joint owner on his accounts on December 15, 2010, and January 4, 2011,
Defendant was not married. The evidence shows that Defendant married Mr. Marquez on
January 20, 2011. Although Mr. Marquez testified that prior to his marriage with Defendant,
he and Defendant “cohabitat[ed] . . . off and on[,]” his testimony does not establish when
their relationship began or whether it was exclusive or continuous prior to their marriage.2


       2
        Our review of the trial testimony belies the State’s assertion in its answer brief that
“Defendant was living at . . . [Marquez]’s house” at the time that she met Mr. Kent. To the
contrary, Mr. Marquez testified that prior to their marriage, he and Defendant “cohabitat[ed]

                                              8
Thus, the evidence adduced at trial did not show that Defendant had deceived Mr. Kent in
any way at the time that Mr. Kent decided to allow Defendant access to his accounts and to
make her a joint owner of his accounts. Thus, the point that the State raised at trial and again
raises in its answer brief—that Mr. Kent “did not know he was putting a married woman on
his accounts”—is not persuasive because it is based on the assumption of a fact that was
actually disproved by the evidence at trial.

{20} Defendant’s deceptive behavior becomes sufficiently apparent, however, when she
married and moved in with Mr. Marquez in January 2011 and not only failed to tell Mr. Kent
this significant detail about her personal life during the “couple times a week” they spent
together, but blatantly lied to Mr. Kent when she introduced Mr. Marquez to him as her gay
friend in May 2011. Regardless of whether Defendant’s deception established her intent to
defraud Mr. Kent when she hid the fact that she was married to Mr. Marquez, the issue on
appeal is not what Defendant intended, but rather what Mr. Kent himself relied upon when
he allowed her to use his accounts.

2.      Insufficient Evidence of Reliance

{21} During the State’s examination of Mr. Kent at trial, the prosecutor did not ask Mr.
Kent whether he would have allowed Defendant to continue to access his accounts if he
knew that Defendant was involved with and had eventually married Mr. Marquez. Instead,
when the prosecutor asked Mr. Kent “what caused” him to allow Defendant to access his
money and make Defendant a joint owner on his accounts, he replied, “[i]t would be easier
for her and her bookkeeping and also the contact with money and then she would replace it.”
On cross-examination, Mr. Kent also testified that he put Defendant on his accounts because
he “wanted to help her out” with “her family, . . . her children, and . . . other things.” He told
the caseworker that he allowed Defendant to access his accounts because “he felt sorry for
[Defendant] and that he was helping her.” Mr. Kent testified that, beyond their first meeting,
the status of Defendant’s romantic affairs was not “pertinent” to him until “now.” And when
asked whether he felt he was “tricked” into allowing Defendant to use his bank accounts, Mr.
Kent replied that he did not. This testimony is not sufficient to prove that Mr. Kent would
not have given Defendant access to his accounts but for his impression that she was
romantically available to him. See UJI 14-134; Young, 711 A.2d at 14; Torcia, supra, § 427.

{22} Although Mr. Kent was “shocked” when he discovered that Defendant had been
married to Mr. Marquez, the evidence at trial was also insufficient to directly connect Mr.
Kent’s discovery of this fact with his decision to finally cut Defendant off from his accounts.



. . . off and on.” After he and Defendant married in January 2011, Mr. Marquez “moved into
the mobile home with her[.]” Later, Mr. Marquez bought a home and he and Defendant
moved there. Mr. Marquez stated that Defendant began “developing” her relationship with
Mr. Kent while she was living at [his] home. He did not testify that he and Defendant were
living together when Defendant and Mr. Kent met.

                                                9
The prosecutor did not ask Mr. Kent whether learning of Defendant’s marriage prompted
him to stop her from using his accounts. Instead, the evidence showed that Mr. Kent finally
cut Defendant off from accessing his accounts for several other reasons: “[t]he bank . . . kept
hounding [him],” his “money in the bank . . . was down[,]” he “finally woke up to see what
was really happening to [his] money,” and that “after a while it got so bad . . . [he] had to
stop it.” Mr. Kent testified that “[his] degeneration of [his] . . . contact with [Defendant,]”
began when “the sheriff’s representatives came out and talked” to him—he did not testify
that learning of Defendant’s marriage from Mr. Marquez caused him to take action or was
the reason he ended his relationship with her. Furthermore, there was no evidence that Mr.
Kent cut off Defendant’s access to his accounts prior to her last transaction on February 14,
2012, which was at least two weeks after Mr. Marquez stated he told Mr. Kent about his
marriage to Defendant in January 2012.

{23} Without testimony from Mr. Kent regarding what he relied upon and whether he
would have continued to allow Defendant to access his accounts had he known her true
marital status, the remainder of the evidence presented at trial would, at best, be equally
consistent with two hypotheses on the factual element of reliance. See Garcia, 2005-NMSC-
017, ¶ 12; Baca, 1988-NMCA-112, ¶ 15. One that, irrespective of Defendant’s marital status,
Mr. Kent’s own testimony appears to support the position that he would have allowed
Defendant to access his money to assist with her children’s financial needs because they
were close friends, he felt sorry for her, and because she provided him with assistance and
companionship. The second being that, irrespective of Defendant’s assistance and
companionship, Mr. Kent only allowed Defendant to access his accounts because of he
thought of her as his romantic partner.

{24} Mr. Kent was the State’s primary witness and testified at length in this case.
Evidence of Mr. Kent’s reliance on Defendant’s misrepresentation of her marital status was
not the type of evidence that was clandestine in nature, could only be proved by
circumstantial evidence, and therefore required the jury to disregard Mr. Kent’s testimony
and extract contradictory inferences from other indirect testimony. Cf. State v. Gallegos,
2011-NMSC-027, ¶ 45, 149 N.M. 704, 254 P.3d 655 (recognizing that because conspiracies
are clandestine in nature, establishing evidence of an agreement between the conspirators
is seldom available, the jury may infer such an agreement from the parties’ conduct and the
surrounding circumstances, even though it raises the specter of a conviction by guess and
speculation). The State offers no explanation for its failure to ask Mr. Kent about what he
relied upon when he gave Defendant money and allowed her access to his accounts. Even
if the jury could also infer that, had the victim known the truth about Defendant’s marital
status, he possibly would not have given Defendant money or access to his accounts, we
conclude that, based upon the evidence presented, the jury could not reasonably make such
a circumstantial inference beyond a reasonable doubt. See Garcia, 2004-NMCA-066, ¶¶ 9,
11; Slade, 2014-NMCA-088, ¶ 14; cf. Commw. v. Imes, 623 A.2d 859, 863 (Pa. Super. Ct.
1993) (concluding that the government failed to prove the element of reliance on a false
impression where “none of the [purported victims] were called to testify at the trial[,]” and
“[c]onsequently, none of them could state whether they relied on [the] false impression”).

                                              10
The State failed to establish such a basis of reliance when Mr. Kent competently testified at
trial. Asking the jury to determine the victim’s reliance from these two plausible inferences
presented by the State, without asking the victim about the matter during his trial testimony,
was the type of evidentiary guesswork and speculation that is insufficient for the State to
meet its burden of proof. See Slade, 2014-NMCA-088, ¶ 14.

{25} Therefore, because the State carried the burden to prove beyond a reasonable doubt
that “without” Defendant’s misrepresentation about her marital status, Mr. Kent would not
have allowed her to access his accounts, the other indirect and contradictory circumstantial
evidence was insufficient to infer the element of reliance necessary to sustain Defendant’s
fraud conviction. UJI 14-134 (providing that, in criminal trials in which causation is an issue,
the state must prove that “without” the defendant’s act, “the injury or harm would not have
occurred”); see Young, 711 A.2d at 14; Torcia, supra, § 427; see also Hornbeck, 2008-
NMCA-039, ¶ 33 (providing that substantial evidence must support every element essential
to the conviction). On the record before us in this case, we hold that “the link between the
facts and the conclusion” is “so tenuous that we call it ‘speculation.’ ” Maes, 2007-NMCA-
089, ¶ 18 (internal quotation marks and citation omitted).

{26} We note that what makes Defendant’s conduct troubling is the age and vulnerability
of Mr. Kent. He was in his mid-eighties, just lost his wife of thirty-six years, and needed
someone to take him to his medical appointments and provide personal companionship.
Although Defendant helped Mr. Kent in these ways, she also used his vulnerability to benefit
herself in an amount that appeared somewhat disproportionate. Rather than ask Mr. Kent to
testify about whether he relied upon Defendant’s marital status to allow her to access his
accounts, the State asked the jury to infer such reliance based upon other indirect and
contradictory circumstantial evidence. We cannot speculate as to why the State presented
its case in this manner. This was either a tactical trial decision by the prosecutor or an
inadvertent error. Unfortunately, the other indirect circumstantial evidence was insufficient
to establish the element of reliance beyond a reasonable doubt.

E.      Computer Access with Intent to Defraud

{27} We also conclude that there was insufficient evidence to support Defendant’s
conviction of computer access with intent to defraud. Our Supreme Court has concluded that
“the Computer Crimes Act was intended by the [L]egislature to deter and punish crimes
committed, at least in a manner of speaking, against computers, or through the abuse of
computer sophistication.” State v. Rowell, 1995-NMSC-079, ¶ 12, 121 N.M. 111, 908 P.2d
1379. The Court noted that the Senate bill upon which the Act was based stated that “[t]he
[L]egislature recognizes a dramatic increase in computer-related crimes . . . through the
introduction of fraudulent data into a computer system, the unauthorized use of computer
facilities, the alteration or destruction of computerized information or files[,] and the stealing
of financial information, data [or] other assets.” Id. ¶ 12 n.2. It observed that the Act was not
intended to apply to the use of a computer as “a passive conduit through which the
defendant’s criminal activity passed.” Id. ¶ 11.

                                               11
{28} In this case, Defendant did not introduce “fraudulent data into a computer system,”
use “computer facilities” without “[authorization,] . . . alter[] or [destroy] . . . computerized
information or files[,]” nor did she steal “financial information, data [or] other assets.” Id.
¶ 12 n.2. Instead, Defendant used the computer as “a passive conduit” to access accounts and
transfer funds, just as any banking customer would. Id. ¶ 11.

{29} Furthermore, because we have concluded that the evidence was insufficient to prove
that the underlying transfers made via the computer were criminal, and because Mr. Kent
expressly approved Defendant’s use of a computer to perform these transfers, the elements
of computer access with intent to defraud could not be proved beyond a reasonable doubt.

CONCLUSION

{30} Because we reverse Defendant’s convictions and remand the case to the district court
with instructions to vacate Defendant’s convictions, we need not address the other issues that
Defendant raises on appeal.

{31}    IT IS SO ORDERED.

                                                ____________________________________
                                                TIMOTHY L. GARCIA, Judge

I CONCUR:

____________________________________
M. MONICA ZAMORA, Judge

JONATHAN B. SUTIN, Judge (dissenting).

SUTIN, Judge (dissenting).

{32} I acknowledge that one might question whether the peculiar and particular
circumstances in this case should be covered under the criminal fraud statute. Why not leave
it to civil fraud remedies? Why not, as Defendant strongly argued in her briefing and in oral
argument, exclude deception in romantic relationships from criminal prosecution? Further,
why not fall back on a view that the circumstances showed it only more likely than not that
Mr. Kent relied on Defendant’s conduct, deceitful hiding of material information, and
fraudulent misrepresentations and omissions? I am unable to follow these why-not paths.
Therefore, I respectfully dissent and would affirm.

{33} Looking at the totality of circumstances, particularly including Defendant’s conduct,
practices, and misrepresentations (including omissions), it seems apparent that the jury
strongly believed that Defendant engaged in a deliberate, willful fraudulent scheme to have
access to Mr. Kent’s bank accounts. And the district court must have viewed the

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circumstances in a similar fashion, having imposed consecutive nine-year sentences for the
two convictions for a total of eighteen years, ten of which were suspended, and having
denied Defendant’s motion for a restitution hearing and imposing restitution in the amount
of $53,800.

{34} Further, viewed in the light most favorable to the verdict, as we must, the evidence
presented at trial should be considered sufficient to support Defendant’s convictions,
including the element of reliance. State v. Nichols, 2014-NMCA-040, ¶ 15, 321 P.3d 937
(stating that in our review of sufficiency-of-the evidence claims, we view the evidence in the
light most favorable to the guilty verdict). I would affirm.

{35} The jury was instructed, in relevant part, that to find Defendant guilty of fraud, the
State was required to prove that (1) Defendant, “by any words or conduct, misrepresented
a fact to [Mr.] Kent, intending to deceive or cheat” him; and (2) “[b]ecause of the
misrepresentation and [Mr.] Kent’s reliance on it, [D]efendant obtained over $20,000[.]”
This instruction is the law of the case against which the sufficiency of the evidence
supporting the jury’s verdict of guilty of fraud beyond a reasonable doubt is to be measured.
See State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 (“Jury instructions
become the law of the case against which the sufficiency of evidence is to be measured.”).

{36} Mr. Kent inquired into Defendant’s marital status upon their first meeting in May
2010. Although at that time Defendant was apparently living with her boyfriend, Mr.
Marquez, whom she married in January 2011, Defendant told Mr. Kent at the time only that
she was not married, but that she had previously been married.

{37} Within several months following that meeting, Defendant persuaded Mr. Kent to
allow her access to his bank accounts, and one month before she married Mr. Marquez,
Defendant persuaded Mr. Kent to add her as a co-owner of his bank accounts and to use the
accounts to help Defendant with her children’s education and her “problems.”

{38} Mr. Kent testified that he and Defendant started a friendship when Defendant offered
to take and then began taking Mr. Kent to doctors and to hospitals. According to Mr. Kent,
after a year or so, he and Defendant “liked each other.” “After a while,” Mr. Kent regarded
Defendant as a close friend, not “quite a lover,” but someone in whom he had a romantic
interest; and, as Mr. Kent described it, they “were both content.”

{39} Beginning in October 2010, before Mr. Kent added Defendant as a co-owner of his
bank accounts in December 2010, Defendant transferred money from one of Mr. Kent’s
accounts into her own accounts using the online-transfer banking feature available through
Mr. Kent’s bank. Defendant continued to transfer money from Mr. Kent’s accounts into her
own account through mid-February 2012. Mr. Kent had given Defendant permission to effect
transfers and withdrawals from his accounts, and he did not specify a limit nor did he require
a specific account of what the money was to be used for. Mr. Kent also gave Defendant
permission to use his debit card, and she did so. At times, Defendant paid Mr. Kent back at

                                             13
least some of the money that she had taken from his accounts. Mr. Kent did not know how
much Defendant had paid back.

{40} Defendant never told Mr. Kent that she had married Mr. Marquez; in fact, she
introduced Mr. Marquez, her then-husband, to Mr. Kent in May 2011 and told Mr. Kent that
Mr. Marquez was her “gay friend.” In January 2012, Mr. Marquez went to Mr. Kent’s home
to tell him that he and Defendant were married; according to Mr. Marquez, Mr. Kent “was
shocked” by that information. In February 2012, Mr. Kent permanently removed Defendant
from his accounts. Three days later, Mr. Kent filed an “affidavit of online fraud” with his
bank.

{41} Given that the affidavit was admitted at trial as an exhibit, this Court sua sponte
obtained a copy. The subject of the affidavit of online fraud was a series of enumerated
transactions achieved by “unauthorized ATM activity[,] unauthorized branch withdrawal and
deposit activity[, and] unauthorized teletransfer activity” totaling several thousand dollars
that occurred between September 2011 and February 2012. In handwritten responses to the
questionnaire portion of the affidavit of online fraud, Mr. Kent provided the following
relevant answers. In response to the question “[w]hen and how did you discover the fraud
in your account?” Mr. Kent answered that “[a]round [the] 9th of February 2012, secondary
acct holder’s ex-husband . . . informed me of some suspicious activity.” In response to the
question “[d]o you know who might have committed the fraud?” Mr. Kent responded, “Yes–
Patricia G. Garcia. ‘Girlfriend’[.]” And, in response to the questionnaire’s request to
“[e]xplain how the person that committed the fraud might have gained access to your
account information[,]” Mr. Kent wrote, “manipulated, convinced me to trust her . . . [.]”

{42} These facts, among others in the record, must be viewed by us within the context of
the evidence as a whole and considered within the totality of the circumstances while
indulging all reasonable inferences in favor of the jury’s verdict of guilt beyond a reasonable
doubt. State v. Graham, 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285; see Gallegos,
2011-NMSC-027, ¶ 18 (rejecting a “divide-and-conquer” approach to considering the
sufficiency of the evidence “whereby each piece of evidence is viewed in isolation, ignoring
reasonable inferences from the totality of the circumstances that support guilt” (internal
quotation marks omitted)). “When we infer, we derive a conclusion from proven facts
because such considerations as experience, or history . . . have demonstrated that there is a
likely correlation between those facts and the conclusion. If that correlation is sufficiently
compelling, the inference is reasonable.” Maes, 2007-NMCA-089, ¶ 18 (internal quotation
marks and citation omitted).

{43} By applying the appropriate standards of review to the jury’s decision, the jury could
have reasonably inferred that, by asking Defendant at the outset of their relationship whether
she was married, the mid-eighty-year-old victim, whose wife had recently died, intended to
learn whether Defendant was available to engage in a romantic relationship. Defendant’s
response that she was not married, while technically correct, could reasonably have been
considered by the jury as disingenuous given that she was living with her boyfriend, Mr.

                                              14
Marquez, whom she married months later. The jury could also have reasonably inferred that
Defendant intended to deceitfully present herself as romantically unattached. See
Stettheimer, 1980-NMCA-023, ¶ 13 (stating that silence that is calculated to deceive may
form the basis for a criminal misrepresentation). In addition, based on Defendant’s almost
immediate and continuing pursuit of Mr. Kent’s money, the jury could have reasonably
inferred that Defendant’s conduct was purposeful in order to eventually gain access to Mr.
Kent’s money, an inference that is supported by the fact that within months of their first
meeting, Defendant had direct access to Mr. Kent’s bank accounts. State v. Brenn, 2005-
NMCA-121, ¶ 24, 138 N.M. 451, 121 P.3d 1050 (recognizing that “intent is usually inferred
from the facts of the case” and established by circumstantial, not direct, evidence).

{44} Further, the jury could have reasonably inferred that Defendant understood that Mr.
Kent’s willingness to allow her access to his accounts was grounded in Mr. Kent’s
impression that Defendant was his “girlfriend,” and in addition, that Defendant’s conduct
showed an intent to continue her ruse so as to continue using Mr. Kent’s money, an inference
that was supported by Defendant having never informed Mr. Kent of her pre-marriage
relationship with and her marriage to Mr. Marquez and by her affirmative misrepresentation
when introducing Mr. Marquez as her gay friend. Finally, based on the overall circumstances
and on Mr. Kent’s affidavit of online fraud stating that Defendant gained access to his bank
accounts by having “manipulated” and “convinced [him] to trust her[.]” This, combined with
the use of the term “girlfriend,” in quotation marks and underlined, allowed the jury to
reasonably infer that but for Defendant’s deceitful conduct intended to lead Mr. Kent to
believe that she was romantically unattached, unmarried, and was his girlfriend, he would
not have permitted Defendant to access his bank accounts. This inference is further
supported by the fact that, although Mr. Kent always knew that Defendant was accessing his
bank accounts and using his money, he stated that he did not discover the fraud on his
account until Mr. Marquez informed him in February 2012 of “some suspicious activity.”
From Mr. Marquez’s testimony, the jury could infer that the “suspicious activity” to which
Mr. Kent referred included that Mr. Marquez was not Defendant’s gay friend but was,
instead, her husband. Viewed in the context of the evidence as a whole, the jury could
reasonably have concluded that but for the knowledge that Defendant’s “activity” was
“suspicious” from which Mr. Kent could believe that Defendant’s intent and activity was to
defraud him, Mr. Kent would not have considered Defendant’s use of his bank accounts to
be fraud.

{45} To hold that the evidence in this case was insufficient to prove Mr. Kent’s reliance
on Defendant’s fraudulent conduct, misrepresentations, and omissions sweeps aside
reasonable inferences formed by the jury in reaching its verdict. See Slade, 2014-NMCA-
088, ¶ 13 (noting that “the weight and effect of the evidence, including all reasonable
inferences to be drawn from both the direct and circumstantial evidence is a matter reserved
for determination by the [jury]” and recognizing that this Court should not substitute its
judgment for that of the jury (internal quotation marks and citation omitted)). Although
“[t]he line between permissible inference and impermissible speculation is not always easy
to discern[,]” see Maes, 2007-NMCA-089, ¶ 18 (internal quotation marks and citation

                                            15
omitted), the jury’s verdict in this case was supported by evidence and by permissible
inferences drawn from that evidence, and it should be upheld. See Slade, 2014-NMCA-088,
¶ 14 (recognizing that an inference is a logical deduction from proven facts).

{46} The notion that evidence of reliance was insufficient because Mr. Kent never
explicitly testified that he relied upon Defendant’s conduct and statements relating to her
marital status or her relationships with Mr. Marquez in allowing Defendant access to and
partial ownership of his accounts is a theory that originated on appeal. Having heard the
prosecution’s direct and re-direct examination of Mr. Kent, and having himself cross-
examined Mr. Kent, Defendant’s trial counsel did not once raise or argue the fact that Mr.
Kent had not explicitly testified that he relied on Defendant’s continuing purposeful failure
to reveal her relationship with Mr. Marquez and marriage to him in allowing Defendant to
access his bank accounts.

{47} This, notwithstanding the fact that after the prosecution presented its case,
Defendant’s counsel moved for a directed verdict on grounds having nothing to do with a
failure of evidence on reliance. See State v. Barreras, 2007-NMCA-067, ¶ 3, 141 N.M. 653,
159 P.3d 1138 (“The question presented by a directed verdict motion is whether there was
substantial evidence to support the charge.” (internal quotation marks and citation omitted)).
It seems safe to assume that Defendant’s trial counsel inferred, as did the jury, that based
under the totality of the circumstances, including in particular Defendant’s conduct and
material misrepresentations and omissions, and the content of Mr. Kent’s affidavit of online
fraud identifying Defendant’s marriage to Mr. Marquez as the basis for his claim, that the
element of reliance was proved.

{48} A good part of Defendant’s argument on appeal dwelled on a view that the criminal
fraud statute and any reasonableness standard cannot be applied to romantic, fleeting, and
fickle relationships, in that persons in such relationships can be, and often are, deceitful and
unreasonable. To bring these relationships under the criminal fraud statute, Defendant
argues, opens a dangerous prosecution door of criminal liability not contemplated by or
intended to be covered under the criminal fraud statute. The Majority Opinion does not
address this policy argument. This argument might have legs in the Legislature, but it has
none in this case.

{49} Because the mainstay of the Majority Opinion is that reliance was not proved because
Mr. Kent did not explicitly say that he relied on Defendant’s misrepresentations, I have
limited this dissent to that question. I have not dissected Defendant’s arguments relating to
materiality, privacy, free speech, double jeopardy, and due process. Those issues need be
addressed only if this case happens to return to this Court after certiorari review by our
Supreme Court. In sum, the element of reliance required to prove fraud rested upon a
combination of proven facts and permissible inferences, with each inference reasonably
derived from evidence at trial. Accordingly, viewing the evidence and inferences in a light
most favorable to the verdict, I would uphold the jury’s verdict and affirm Defendant’s
convictions.

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 ____________________________________
 JONATHAN B. SUTIN, Judge




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