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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
APRIL PADILLA,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, William
G.W. Shoobridge, District Judge
Gary K. King, Attorney General, Santa Fe,
NM, for Appellee
Law Offices of the Public Defender, Jorge
A. Alvarado, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate
Defender, Santa Fe, NM, for Appellant
JONATHAN B. SUTIN, Judge. WE CONCUR: LINDA
M. VANZI, Judge, J. MILES HANISEE, Judge
AUTHOR: JONATHAN B. SUTIN
{1} Defendant filed a
docketing statement, appealing from her conviction of conspiracy to commit
shoplifting (over $2,500), a fourth degree felony, contrary to NMSA 1978,
Sections
30-16-20 (2006) and
30-28-2 (1979). In this Court’s notice of proposed
summary disposition, we proposed to affirm. [CN 1] Defendant filed a memorandum
in opposition. [MIO] We have given due consideration to the memorandum in
opposition, and remaining unpersuaded, we affirm Defendant’s conviction.
{2} Defendant continues
to argue that there was insufficient evidence to sustain her conviction. [MIO
6] In support of her argument, Defendant contends, in pertinent part, that
“[t]he State was required to further prove the elements of [s]hoplifting which
requires the State to prove beyond a reasonable doubt that [Defendant]
transferred several [i]Pads from the container in which they were displayed to
another container[ and] the merchandise had a market value of over $2,500.00[.]”
[MIO 7] Defendant additionally continues to argue that she did not know that
shoplifting was occurring until after it was complete. [MIO 8] In other words,
by her memorandum in opposition, Defendant clarifies her argument that the
State did not present sufficient evidence to support the jury’s finding that
Defendant (1) shoplifted [MIO 7]; (2) knew about the shoplifting until
after it was complete, and therefore, agreed to and intended to shoplift [MIO
8]; and (3) intended that Walmart be deprived of over $2,500 worth of
merchandise. [MIO 9-11]
{3} First, in our
calendar notice we briefly addressed the mistaken premise of Defendant’s claim
that there was insufficient evidence to support a jury finding that Defendant
shoplifted. [MIO 7; CN 3] We stated that the jury was not required to find that
Defendant took possession of any items while in Walmart and that, in fact,
Defendant was only charged with
conspiracy to shoplift. [DS 1; RP 1; CN
3] We now reiterate that because Defendant was not charged with shoplifting,
the jury was not required to find that Defendant transferred the iPads or
shoplifted. [RP 1, 77; see RP 78]
{4} Nonetheless,
because Defendant was charged with
conspiracy to shoplift, the elements
for shoplifting were included in the jury instructions, including as its first
element that “the defendant transferred several [i]pad[s] . . . from the
container in which they were displayed to another container[.]” [RP 78] We
recognize that the shoplifting-elements instruction was poorly drafted and
tends to indicate that the jury may have been required to find that Defendant
herself committed the shoplifting. However, we again stress that “conspiracy”
merely “consists of knowingly combining with another for the purpose of
committing a felony within or without this state.” Section 30-28-2(A). Nowhere
in the statute defining “conspiracy” is there a requirement that the defendant
also commit the felony itself.
See § 30-28-2. Likewise, the jury
instructions did not require the jury to find that Defendant committed the
actual shoplifting in order to find Defendant guilty of
conspiracy to
shoplift. [
See RP 77] Although the jury instruction defining the
shoplifting elements was vague with regard to the shoplifter identified therein
and was arguably confusing as a result thereof,
see § 30-16-20(A)(4)
(defining “shoplifting” as “willfully transferring merchandise from the
container in or on which it is displayed to another container with the
intention of depriving the merchant of all or some part of the value of it”),
Defendant failed to object to the wording of the instruction at trial and has,
accordingly, failed to preserve an argument regarding the jury instruction for
appeal.
See Rule
12-216(B) NMRA;
In re Aaron L.,
2000-NMCA-024, ¶
10,
128 N.M. 641,
996 P.2d 431 (stating that, on appeal, the reviewing court
will not consider issues not raised in the district court unless the issues
involve matters of jurisdictional or fundamental error).
{5} This is not a case
involving fundamental error. Defendant is not indisputably innocent. Nor does
the mistake make the conviction fundamentally unfair.
See State v. Barber,
2004-NMSC-019, ¶ 17,
135 N.M. 621,
92 P.3d 633 (providing that fundamental
error only occurs in “cases with defendants who are indisputably innocent, and
cases in which a mistake in the process makes a conviction fundamentally unfair
notwithstanding the apparent guilt of the accused”). We conclude that there was
sufficient evidence for the jury to have convicted Defendant of conspiracy, as
discussed more fully in this Opinion, so Defendant is not, as she claims,
indisputably innocent of conspiracy. The mistake does not make the conviction
fundamentally unfair because a finding of conspiracy does not require a finding
that the crime itself was committed.
See, e.g.,
State v. Olguin,
1994-NMCA-050, ¶ 36,
118 N.M. 91,
879 P.2d 92 (“[W]e now . . . uphold the
conviction for conspiracy, notwithstanding that one of the underlying crimes
may not have been supported by sufficient evidence.”),
aff’d in part,
1995-NMSC-077,
120 N.M. 740,
906 P.2d 731. Whether the jury considered and/or
determined that Defendant herself actually transferred the iPads from their
original packaging to the cart/her purse is irrelevant to the conspiracy charge
and, thus, harmless. Accordingly, the arguably confusing jury instruction
defining the shoplifting elements is, at best, harmless error.
{6} Second, we address
Defendant’s continued argument that there was insufficient evidence to support
a finding that Defendant knew about the shoplifting until after it was
complete, and therefore, that Defendant agreed to and intended to commit
shoplifting. [MIO 8] As we stressed in our calendar notice, in order to convict
Defendant of
conspiracy to shoplift, the jury was required to find, in
pertinent part, that Defendant and another person by words or acts
agreed
together to and intended to commit shoplifting, with the act of shoplifting
described in the elements instruction. [RP 77] Defendant’s memorandum in
opposition provides this Court with a much more detailed picture of the
evidence presented by both parties below than was provided in Defendant’s
docketing statement.
See Rule
12-208(D)(3) NMRA (requiring the docketing
statement to contain a summary of “all facts material to a consideration of the
issues presented”). Nevertheless, as we explained in our calendar notice, “we
must view the evidence in the light most favorable to the guilty verdict,
indulging all reasonable inferences and resolving all conflicts in the evidence
in favor of the verdict.”
State v. Cunningham,
2000-NMSC-009, ¶ 26,
128
N.M. 711,
998 P.2d 176. “The relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.”
Id. (alteration, emphasis, internal quotation marks, and
citation omitted). “Substantial evidence review requires analysis of whether
direct or circumstantial substantial evidence exists and supports a verdict of
guilt beyond a reasonable doubt with respect to every element essential for
conviction.”
State v. Kent,
2006-NMCA-134, ¶ 10,
140 N.M. 606,
145 P.3d
86.
{7} According to the
memorandum in opposition, the following pertinent evidence was presented at
trial. Mr. Bookhammer testified that he went to Walmart on the date in
question, accompanied by Defendant and two other women. [MIO 1] Detective
Porter testified that Mr. Bookhammer stated in his recorded interview (State’s
Ex. 2) that he gave the unpackaged iPads to “the girls,” who then left the
store without paying for them. [MIO 2] Detective Porter further testified that
Walmart surveillance video showed all three women in the vicinity of the
electronics section and near the shopping cart when Mr. Bookhammer placed the
iPads in the cart. [MIO 3] Detective Porter additionally testified that
Defendant stated in her recorded interview that she allowed one of the other
women to use her purse to conceal and remove the iPads from Walmart. [MIO 3]
{8} Viewing the evidence
“in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the
verdict[,]”
Cunningham,
2000-NMSC-009, ¶ 26, we conclude that there was
sufficient evidence of a direct or circumstantial nature,
see Kent,
2006-NMCA-134, ¶ 10, to uphold the jury’s findings that Defendant and Mr.
Bookhammer and/or the other women present, by words or acts, agreed to and
intended to commit shoplifting—transferring five iPads from the container in
which they were displayed to Defendant’s purse—on or about the date in
question. [RP 77-78] To the extent that Defendant believes the intermediate
placement of the iPads in the shopping cart is relevant [
see MIO 8], we
disagree. The fact that Mr. Bookhammer may have placed the iPads into the cart
before he or one of the women ultimately transferred the iPads to Defendant’s
purse for removal from the store is inconsequential.
{9} Additionally,
although Defendant presented evidence that contradicts Detective Porter’s
testimony and testified herself that she did not conspire to steal the iPads,
it was for the jury to resolve any conflict in the testimony of the witnesses
and to determine where the weight and credibility lay.
See State v. Salas,
1999-NMCA-099, ¶ 13,
127 N.M. 686,
986 P.2d 482;
see also State v. Griffin,
1993-NMSC-071, ¶ 17,
116 N.M. 689,
866 P.2d 1156 (“This court does not weigh
the evidence and may not substitute its judgment for that of the fact finder so
long as there is sufficient evidence to support the verdict.” (internal
quotation marks and citation omitted)). “Contrary evidence supporting acquittal
does not provide a basis for reversal because the jury is free to reject [the
d]efendant’s version of the facts.”
State v. Rojo,
1999-NMSC-001,
¶ 19,
126 N.M. 438,
971 P.2d 829.
{10} Finally, with regard
to Defendant’s argument that there was insufficient evidence to uphold a
finding that she conspired to shoplift merchandise worth more than $2,500, we
are unpersuaded. Defendant stated in her memorandum in opposition that Mr.
Bookhammer removed five iPads, each valued at anywhere from $500 to $800, from
the display case. [MIO 8] As there was sufficient evidence for the jury to
conclude that Defendant conspired to shoplift the iPads, and as the five iPads
taken were worth, collectively, anywhere from $2,500 to $4,000, we conclude
that the evidence was sufficient to support the contested finding.
See
Cunningham,
2000-NMSC-009, ¶ 26 (stating that we view the evidence “in the
light most favorable to the guilty verdict, indulging all reasonable inferences
and resolving all conflicts in the evidence in favor of the verdict”).
{11} As there is no
contention or evidence to suggest that the events did not occur on or about the
date in question; that Walmart was not offering the iPads for sale to the
public in a store; or that the shoplifter, by his shoplifting, did not intend
to deprive Walmart of all or some part of the value of this merchandise [RP 77,
78], we conclude that there was sufficient evidence to support Defendant’s
conviction of conspiracy to shoplift. Accordingly, for all the reasons stated
in this Opinion and detailed in this Court’s notice of proposed summary
disposition, we affirm Defendant’s conviction of conspiracy to commit shoplifting.