 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 28,014

10 ANTJUAN MCGHEE,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
13 Charles C. Currier, District Judge

14 Gary K. King, Attorney General
15 Farhan Khan, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Liane E. Kerr
19 Albuquerque, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 WECHSLER, Judge.

23          Defendant Antjuan McGhee appeals from the district court’s judgment,

24 sentence and commitment. He was convicted after a jury trial of (1) attempt to
 1 commit a violent felony—first degree murder, with a firearm enhancement; (2)

 2 robbery, with a firearm enhancement; (3) conspiracy to commit first degree murder;

 3 and (4) possession of a firearm by a felon. He contends on appeal that the evidence

 4 at trial was insufficient to support his convictions of attempt to commit first degree

 5 murder, robbery, and conspiracy to commit first degree murder. We affirm.

 6 STANDARD OF REVIEW

 7        Substantial evidence is relevant evidence that a reasonable mind might
 8        accept as adequate to support a conclusion. In reviewing the sufficiency
 9        of evidence used to support a conviction, we resolve all disputed facts in
10        favor of the State, indulge all reasonable inferences in support of the
11        verdict, and disregard all evidence and inferences to the contrary.
12        Contrary evidence supporting acquittal does not provide a basis for
13        reversal because the jury is free to reject Defendant’s version of the facts.

14 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (citations omitted).

15 Applying this standard of review, we address Defendant’s arguments by stating the

16 evidence that supports the jury’s verdict.

17 TESTIMONY OF JAMES HILL

18        James Hill testified at trial to the events that occurred. He went to the

19 apartment of his friend, Cassandra Luna, to look at a TV that was for sale. Defendant

20 was at the apartment when he arrived. Defendant took Hill to another apartment to

21 see the TV. In that apartment, four girls were sitting on a couch and a heavy set man

22 wearing a dark “hoodie” over his head was across the room. Defendant escorted Hill

23 to another room, and when Hill observed that there was no TV in that room, he turned

                                                2
 1 and saw the man wearing the hoodie pointing a gun at his head demanding his wallet.

 2 The man wearing the hoodie punched Hill more than once, and said, “[h]urry up, I’m

 3 not kidding.” Hill charged at the man wearing the hoodie, and in the ensuing scuffle,

 4 they fell to the ground. While on the ground, one of the girls from the couch

 5 attempted to reach into Hill’s back pocket, and he kicked her aside. The man wearing

 6 the black hoodie passed the gun to Defendant and told him to “[q]uit fucking around.

 7 Shoot him.” A brief pause ensued, followed by another order to “fucking shoot him.”

 8 Defendant shot at Hill, and he moved his head such that the bullet grazed the side of

 9 his head. Hill then removed his wallet from his pants, gave it to Defendant, and left

10 the apartment.

11 ATTEMPT TO COMMIT FIRST DEGREE MURDER

12        The jury received two instructions containing the elements of attempted first

13 degree murder. The first instruction required the State to prove beyond a reasonable

14 doubt that:

15               1.    The defendant intended to commit the crime of murder;

16               2.    The defendant began to do an act which constituted a
17                     substantial part of the murder but failed to commit the
18                     murder;

19               3.    This happened in New Mexico on or about the 27th day of
20                     October, 2006.

21        The second instruction concerned the element of deliberate killing and required


                                             3
 1 the State to prove beyond a reasonable doubt that:

 2               1.    The defendant killed James Hill;

 3               2.    The killing was with deliberate intention to take away the
 4                     life of James Hill;

 5               3.    This happened in New Mexico on or about the 27th day of
 6                     October, 2006.

 7 The district court further defined for the jury the meaning of the second element of

 8 this instruction.

 9               A deliberate intention refers to the state of mind of the defendant.
10        A deliberate intention may be inferred from all of the facts and
11        circumstances of the killing. The word deliberated means arrived at or
12        determined upon as a result of careful thought and the weighing of the
13        consideration for and against the proposed course of action. A calculated
14        judgment and decision may be arrived at in a short period of time. A
15        mere unconsidered and rash impulse, even though it includes an intent
16        to kill, is not a deliberate intention to kill. To constitute a deliberate
17        killing, the slayer must weigh and consider the question of killing and his
18        reasons for and against such choice.

19        Defendant does not contend that these instructions were an incorrect statement

20 of the law. He argues that there was insufficient evidence of his “‘willful, deliberate

21 and premeditated’ intention to kill James Hill.” He points to the lack of physical

22 evidence and testimony of persons present and notes the testimony of Detective Lisa

23 Brackeen that she did not believe that there was a “planned event” but rather “more

24 of a spur of the moment response to the fight.” Yet, as Defendant acknowledges, even

25 in the absence of direct evidence, circumstantial evidence can be sufficient to support


                                              4
 1 a finding of intent. State v. Durant, 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d

 2 495 (recognizing that “[i]ntent can rarely be proved directly and often is proved by

 3 circumstantial evidence”).

 4        As stated in the jury instructions, the jury had the obligation to determine

 5 whether Defendant “weigh[ed] and consider[ed] the question of killing” or, to reach

 6 the opposite conclusion, acted in an “unconsidered and rash impulse.” It had before

 7 it evidence that the man wearing the hoodie told Defendant to “[q]uit fucking around.

 8 Shoot him.” This was followed by a similar order to “fucking shoot him.” The jury

 9 could have reasonably concluded that during the gap in time, Defendant weighed and

10 considered whether to shoot and deliberately concluded to do so. A deliberate intent

11 may be formed within a short period of time. State v. Blea, 101 N.M. 323, 326, 681

12 P.2d 1100, 1103 (1984); State v. Lucero, 88 N.M. 441, 443, 541 P.2d 430, 432 (1975).

13 Defendant’s shooting at Hill’s head from short range was additional evidence that he

14 intended to kill Hill.

15        Detective Brackeen’s testimony does not detract from this conclusion. Even if

16 it can be interpreted to mean that Defendant’s actions were not weighed and

17 considered, the jury was not obligated to credit her testimony. See State v. Salazar,

18 1997-NMSC-044, ¶ 44, 123 N.M. 778, 945 P.2d 996 (“The fact finder may reject a

19 defendant’s version of the facts.” (internal quotation marks and citation omitted)).

20 There was substantial evidence supporting the jury’s verdict of attempt to commit first

                                              5
 1 degree murder.

 2 ROBBERY

 3        The jury instruction for the robbery charge required the jury to find beyond a

 4 reasonable doubt that:

 5               1.     The defendant took and carried away a wallet from James
 6                      Hill or from his immediate control intending to
 7                      permanently deprive James Hill of the wallet;

 8               2.     The defendant was armed with a firearm;

 9               3.     The defendant took the wallet by force;

10               4.     This happened in New Mexico on or about the 27th day of
11                      October, 2006.

12 Defendant does not argue that the evidence does not support the first, second, and

13 fourth elements of this instruction.

14        Defendant contends that the third element was not met because he did not

15 exercise the force or threat of force that was the “lever” that separated the wallet from

16 Hill. See State v. Lewis, 116 N.M. 849, 851, 867 P.2d 1231, 1233 (Ct. App. 1993)

17 (stating that, in order to convict for the offense of robbery, “the use or threatened use

18 of force must be the factor by which the property is removed from the victim’s

19 possession”). Defendant argues that he did not demand Hill’s wallet, that the man

20 wearing the hoodie did not tell him to rob Hill but to shoot him, and that “the impetus

21 of the gun was too attenuated to support the charge of robbery.”


                                               6
 1         However, in considering Defendant’s sufficiency of the evidence argument, we

 2 “indulge all reasonable inferences in support of the verdict.” Rojo, 1999-NMSC-001,

 3 ¶ 19. It was reasonable for the jury to conclude that the events were related and that

 4 the demand of Hill’s wallet by the man wearing the hoodie, the passing of the gun to

 5 Defendant, and the demand that Defendant shoot Hill were related to Defendant’s use

 6 of force by shooting Hill. It was also reasonable for the jury to conclude that

 7 Defendant’s use of the gun contributed to Hill’s giving Defendant possession of his

 8 wallet. There was sufficient evidence to support the robbery conviction.

 9 CONSPIRACY TO COMMIT FIRST DEGREE MURDER

10         The jury instruction for conspiracy to commit murder required the jury to find

11 that:

12               1.    The defendant and another person by words or acts agreed
13                     together to commit murder;

14               2.    The defendant and the other person intended to commit
15                     murder;

16               3.    This happened in New Mexico on or about the 27th day of
17                     October, 2006.

18         Defendant does not challenge that the instruction properly stated the law

19 relevant to the charge. He argues that “there was no evidence that . . . Defendant and

20 the hooded person acted in concert in committing the attempted murder of James

21 Hill.” Specifically, he argues that the man with the hoodie told Defendant to “shoot”


                                              7
 1 rather than “kill” Hill.

 2        However, Defendant acknowledges that “[a] mutually implied understanding

 3 is sufficient” to support a conspiracy. State v. Armijo, 90 N.M. 12, 14, 558 P.2d 1151,

 4 1153 (Ct. App. 1976) (internal quotation marks and citation omitted). The common

 5 design required “is generally a matter of inference deduced from the facts and

 6 circumstances, and from the acts of the person accused.” Id. (internal quotation marks

 7 and citation omitted).

 8        There was evidence that the man wearing the hoodie passed Defendant a gun

 9 and told him to shoot Hill. Defendant paused and, when told again, shot at Hill’s head

10 from close range. When we view this evidence in the light most favorable to the

11 jury’s verdict, State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994), there

12 was sufficient evidence from which the jury could have reasonably concluded that

13 Defendant and the man wearing the hoodie had a mutually implied understanding that

14 Defendant was to shoot to kill Hill. The fact that the man wearing the hoodie said

15 “shoot” instead of “kill” is not determinative as Defendant argues. Given the

16 circumstances of Defendant’s close proximity to Hill when the man wearing the

17 hoodie passed Defendant the gun, it was reasonable for the jury to conclude that the

18 intent was to shoot to kill.



19 CONCLUSION

                                              8
1      We affirm Defendant’s convictions.



2                                           ________________________________
3                                           JAMES J. WECHSLER, Judge

4 WE CONCUR:



5 ______________________________
6 CYNTHIA A. FRY, Chief Judge



7 ______________________________
8 JONATHAN B. SUTIN, Judge




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