 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 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
 4   deviations from the official paper version filed by the Court of Appeals and does not include the
 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. 28,791

10 CHRISTINE PENMAN,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas J. Hynes, District Judge

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

16 Francine A. Chavez, Assistant Attorney General
17 Albuquerque, NM

18 for Appellee

19 Chief Public Defender
20 Adrianne R. Turner, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION

24 BUSTAMANTE, Judge.
 1        Christine Penman (Defendant) appeals her conviction of embezzlement under

 2 NMSA 1978, Section 30-16-8 (2007).              Defendant raises issues regarding the

 3 sufficiency of the evidence, the dismissal of a juror prior to voir dire, and the failure

 4 of the State to disclose the existence of a recording of a police interview with

 5 Defendant. We reverse based on our conclusion that the evidence was insufficient to

 6 support the conviction. As a result, we do not address Defendant’s arguments

 7 regarding the juror and the recording.

 8 I.     BACKGROUND

 9        The State presented two witnesses: Officer David Karst, who investigated the

10 incident, and Ms. Virginia Dearth, who manages the store at issue and was

11 Defendant’s boss. Ms. Dearth explained the store’s protocol for handling money.

12 During the day, cashiers deposit money in a safe drop whenever their drawers exceed

13 $100. When it is time to deposit money, the cashier places it in a bag, records the

14 amount in a “drop log,” and puts the bag in a slot in the drop safe. Only the manager

15 (Ms. Dearth) and the assistant manager (Defendant, at the time of the incident) have

16 access to the safe. At the beginning of each day, the manager on duty performs the

17 daily deposit. First, all of the cash, checks, and money orders from the previous day

18 are removed from the drop safe. Ms. Dearth testified that the manager then counts this

19 money and enters the result into a computer.

                                               2
 1        Officer Karst explained a slightly different procedure. Karst testified that

 2 Defendant indicated to him that the manager enters into the computer an amount for

 3 each item in the safe and that the computer calculates the total. The manager also

 4 writes this total into the daily sheet log. The manager then prepares a deposit slip with

 5 the same number and deposits the money and deposit slip at the bank. Part of the

 6 manager’s job is to check the computer total against the number on the deposit slip.

 7 No evidence was introduced as to total sales as reflected by the registers or the

 8 amounts on the drop slips cashiers recorded when they made drops to the safe.

 9        The deposit log, deposit slip, and computer printout of the manually entered

10 numbers relating to August 17, 2007, were all entered into evidence. The computer

11 printout showed a figure of $9622.50 cash. The deposit log contained a handwritten

12 entry by Defendant that indicated $8622.50, but the eight had apparently been written

13 over a nine (or vice versa). The deposit slip indicated $8622.50. The deposit log also

14 indicated that on the following day the bank confirmed the deposit. It is not clear,

15 however, whether this would have referred to the number before or after the write-

16 over. The entry for August 17 was made by Defendant. The deposit log also

17 contained a write-over on the August 20, 2007, entry that was made by Ms. Dearth.

18 The only other evidence that the money might have existed came from the following

19 exchange during the redirect of Ms. Dearth:


                                               2
 1        State: If one makes an addition or subtraction error in the cash, what[ is]
 2               probably going to show on the computer printout the next day?

 3        Ms. Dearth: It[ is] going to show you over or short.

 4        State: So, let[us] say, I make a mistake by $1000 for instance, and I put
 5               that wrong amount on the deposit slip. What[ is] going to show
 6               on the next day’s computer printout?

 7        Ms. Dearth: It[ is] going to show that we’re $1000 short.

 8        State: And, in this particular instance, did it?

 9        Ms. Dearth: No.

10        State: So the money was physically gone, would that be a fair
11               assessment?

12        Ms. Dearth: Yes.

13        Officer Karst indicated that Defendant’s demeanor was “hollow,” and that he

14 was surprised that she had not acted “shocked” at the accusations against her. The

15 officer testified that Defendant had told him that she counted the money twice: the

16 first time she counted the money, she obtained a result of $9622.50; however, the

17 second time, she calculated $8622.50. The officer testified that Defendant offered no

18 explanation for this discrepancy and that Defendant stated that she did not notice the

19 discrepancy until later.

20 II.    DISCUSSION




                                               3
 1         Defendant argues that there was not sufficient evidence to support her

 2 conviction because the State did not present evidence to show that the $1000

 3 Defendant was convicted of embezzling ever existed. The State appears to argue that

 4 Defendant’s failure to claim she had made a mistake proves that she did not make a

 5 mistake. The State also argues that any mistake would have appeared on the printout

 6 the following day.

 7         “[T]he test to determine the sufficiency of evidence in New Mexico . . . is

 8 whether substantial evidence of either a direct or circumstantial nature exists to

 9 support a verdict of guilt beyond a reasonable doubt with respect to every element

10 essential to a conviction.” State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319

11 (1988). “In reviewing the sufficiency of the evidence, we must view the evidence in

12 the light most favorable to the guilty verdict, indulging all reasonable inferences and

13 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,

14 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “This court does not weigh the

15 evidence and may not substitute its judgment for that of the fact finder so long as there

16 is sufficient evidence to support the verdict.” Sutphin, 107 N.M. at 131, 753 P.2d at

17 1319.

18         Our standard of review regarding sufficiency of the evidence is extremely

19 deferential. This is a result of our respect for “the jury’s fundamental role as


                                               4
 1 fact[]finder in our system of justice.” State v. Vigil, 2010-NMSC-003, ¶ 4, 147 N.M.

 2 537, 226 P.3d 636 (internal quotation marks and citation omitted). However, against

 3 this deference we must balance “our own responsibility to ascertain whether there was

 4 sufficient evidence for any reasoning fact[]finder to conclude beyond a reasonable

 5 doubt that there was evidence establishing [the d]efendant’s guilt[,]” id. ¶ 5, in order

 6 to fulfill our “duty to assure that the basis of a conviction is not mere speculation.”

 7 Id. ¶ 19 (internal quotation marks and citation omitted).

 8        Jury instruction number 4 set forth the elements that the State was required to

 9 prove to the jury beyond a reasonable doubt. These elements were:

10        1.     The [D]efendant was entrusted with depositing daily deposits for
11               Sundial Corporation including $1,000.00;

12        2.     The [D]efendant converted this $1000.00 to the [D]efendant’s
13               own use. “Converting something to one’s own use” means
14               keeping another’s property rather than returning it, or using
15               another’s property for one’s own purpose rather than for the
16               purpose intended by the owner.

17        3.     At the time the [D]efendant converted the $1,000.00, the
18               [D]efendant fraudulently intended to deprive the owner of the
19               owner’s property. “Fraudulently intended” means intended to
20               deceive or cheat;

21        4.     This happened in New Mexico on or about the 17th day of
22               August, 2007.

23 As we understand Defendant’s argument, Defendant challenges only that the State did

24 not prove the existence of the $1000. We therefore limit our review to element

                                              5
 1 one: whether the State proved that Defendant was entrusted with $1000. We read this

 2 element to require that the State prove that $9622.50 was dropped into the safe, of

 3 which Defendant converted $1000 and deposited $8622.50.

 4        Although the State may prove elements using only circumstantial evidence, it

 5 may not hypothesize that an item exists in order to prove an element using evidence

 6 that that item was never found. For example, in State v. Duran, the defendant was

 7 convicted of murdering a woman by stabbing her repeatedly. 2006-NMSC-035,

 8 ¶¶ 1, 3, 140 N.M. 94, 140 P.3d 515. In addition, he was convicted of tampering with

 9 evidence, apparently because police were unable to find either the murder weapon or

10 any bloody clothing. See id. ¶ 13. The Supreme Court reversed the tampering

11 conviction because it was not supported by substantial evidence. Id. ¶ 16. The Court

12 was first careful to note that such a charge could be proven using only circumstantial

13 evidence; however, such evidence still had to prove an affirmative act of tampering.

14 Id. ¶ 13. Reviewing the evidence under the deferential standard afforded to jury

15 verdicts, the Court observed that “we have no evidence of an overt act to destroy or

16 hide any knife or blood stained clothing, if such clothing did in fact exist.” Id. ¶ 15

17 (emphasis added). In other words, failure to find the knife, which circumstantial

18 evidence indicated existed, did not prove that the defendant had hidden it, and failure




                                              6
 1 to find the clothes was meaningless when nothing in evidence suggested such clothes

 2 even existed.

 3        The State presented no direct evidence that the $1000 existed. Instead, the State

 4 relied on three pieces of circumstantial evidence. First, the State introduced evidence

 5 that Defendant typed $9622.50 (or amounts adding up to $9622.50) into the computer

 6 but recorded and deposited only $8622.50. No rational jury could conclude that the

 7 $1000 existed based on this discrepancy alone. Second, the State introduced two

 8 computer printouts containing the $9622.50 number based on Defendant’s manual

 9 entries. The printouts also contained a column labeled “Cash Over/Sht” showing what

10 might be a $71.88 shortage on August 17 and a $5.24 shortage on August 18. In fact,

11 every day on the printout contains either a shortage or an overage of up to $100. No

12 evidence was introduced to explain the meaning of this column, how it was calculated,

13 or how it was entered into the computer. In particular, no evidence showed that the

14 column was computed based on a reliable count of money in the cash registers or drop

15 logs. Taken together, these facts still could not lead a reasoning jury to conclude that

16 the $1000 existed.

17        The State’s best evidence is Ms. Dearth’s testimony that a data entry mistake

18 would have resulted in an overage or shortage. On redirect, the State framed the

19 following hypothetical: “So, let [us] say, I make a mistake . . . [w]hat[ is] going to


                                              7
 1 show on the next day’s computer printout?” Ms. Dearth responded that the printout

 2 would show a shortage. But Ms. Dearth did not explain the overage/shortage column

 3 on Exhibits 2 and 6, or why and how mistakes would show up in that column on the

 4 next day or on any day. Nor did she explain why this column always showed an

 5 overage or shortage. Critically, she did not explain whether this column took into

 6 account data–such as the cash register totals–that was tied not to manually entry, but

 7 instead to an independent indicator of how much money was physically present. The

 8 jury was left to speculate as to what columns are added or subtracted to what other

 9 columns on the exhibits to produce this number. No combination of columns,

10 additions, or subtractions that this Court could find makes the numbers on the

11 printouts balance. The overage/shortage column, at least on the record before us, is

12 inscrutable.

13        Nevertheless, based on a hypothetical that assumed a mistake had been made,

14 the State led Ms. Dearth to agree that, since the report did not indicate a $1000

15 shortage on the following day, “the money was physically gone.” Ms. Dearth’s

16 response to this leading hypotheticals is not evidence that the money existed and,

17 without more, could not be accepted by a rational juror as proof that the $1000

18 existed.   Indeed, her testimony only makes sense if one assumes that the




                                             8
 1 overage/shortage column was tied to an accurate count of the money that was

 2 deposited. But this assumption is not supported by the record.

 3        As in Duran, the State’s case requires the jury to assume that certain evidence

 4 existed before an inference of guilt can be made. However, also like Duran, the State

 5 did not sufficiently prove the existence of that evidence. Instead, the jury was

 6 required to infer that the $1000 existed based on the unexplained value in the

 7 overage/shortage column. Since the State did not introduce evidence, such as the drop

 8 receipts or cash register totals, to show that the $1000 existed, this line of reasoning

 9 is only possible if the jury speculates that the value in this column somehow reflected

10 the amount of money deposited.

11        We are not alone in our concern that the State did not meet its burden. During

12 the discussion of Defendant’s motion for a directed verdict of acquittal, the district

13 court repeatedly asked the State what evidence it had presented that $1000 ever

14 existed. Additionally, the jury submitted questions to the judge. Several of these

15 questions were directed to evidence that would have established the existence of the

16 $1000 such as the cash register balances and the drop bag receipts. The judge

17 instructed the jury that it would “have to rely on the evidence presented at trial.”

18 Although we do not consider these factors in reaching our decision, they serve to




                                              9
1 highlight the fact that the shortcomings in the State’s case were evident to all parties

2 involved.

3 III.   CONCLUSION

4        For the foregoing reasons, we reverse Defendant’s conviction.




                                             10
1     IT IS SO ORDERED.



2
3                             MICHAEL D. BUSTAMANTE, Judge


4 WE CONCUR:


5
6 CELIA FOY CASTILLO, Chief Judge


7
8 JAMES J. WECHSLER, Judge




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