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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOSEPH ALLEN,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, Mark
Sanchez, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, Jane A. Bernstein, Assistant Attorney General, Albuquerque, NM,
for Appellee
Templeman and Crutchfield, C. Barry
Crutchfield, Lovington, NM, for Appellant
LINDA M. VANZI, Chief Judge. WE CONCUR:
MICHAEL E. VIGIL, Judge, M. MONICA ZAMORA, Judge
{1} Defendant
Joseph Allen is appealing his conviction for conspiracy to commit forgery. We
issued a calendar notice proposing to reverse. The State has filed a memorandum
in opposition, and Defendant has filed a memorandum in support. We reverse
Defendant’s conviction.
{2} Defendant’s sole
issue in this appeal has challenged the sufficiency of the evidence to support
his conviction. A sufficiency of the evidence review involves a two-step
process. Initially, the evidence is viewed in the light most favorable to the
verdict. Then the appellate court must make a legal determination of “whether
the evidence viewed in this manner could justify a finding by any rational
trier of fact that each element of the crime charged has been established
beyond a reasonable doubt.”
State v. Apodaca,
1994-NMSC-121, ¶ 6,
118
N.M. 762,
887 P.2d 756 (internal quotation marks and citations omitted).
{3} Here, the State
alleged that Defendant had conspired to commit forgery. [RP 87] In support, the
State presented evidence that Defendant and another individual, Steve Bouton
(Bouton), drove up to a residential mailbox, with Defendant driving and Bouton
the passenger. [DS 2; MIO 2] Defendant reached into the mailbox and handed Bouton
the contents, which included checks that were later altered. [DS 2-3; MIO 2]
The checks were contained in envelopes that did not indicate that checks were
inside. [DS 3] Three of the checks were altered to be made payable to Bouton
and one check was made payable to two other individuals. [DS 2-3] When later
confronted about the incident, Defendant denied that he had agreed with Bouton
to commit the crime, but he did admit that he knew that Bouton had committed
forgery in the past. [DS 5; MIO 3]
{4} “Conspiracy
consists of knowingly combining with another for the purpose of committing a
felony within or without this state.” NMSA 1978, §
30-28-2(A) (1979). A
conspiratorial agreement may be proved by circumstantial evidence, and “the
agreement can be nothing more than a mutually implied understanding that can be
proved by the cooperative actions of the participants involved.”
State v.
Roper,
2001-NMCA-093, ¶ 8,
131 N.M. 189,
34 P.3d 133;
see also State v.
Gallegos, 2011–NMSC–027, ¶ 45,
149 N.M. 704,
254 P.3d 655 (noting that
conspiracy is a clandestine crime, and a jury may infer the existence of an
agreement based on conduct and the surrounding circumstances).
{5} In this case, the
State seemed to have relied heavily on Defendant’s comment that he knew that
Bouton had previously been involved with forgery. However, in
State v.
Maldonado,
2005-NMCA-072, ¶ 11,
137 N.M. 699,
114 P.3d 379, this Court
reversed a conspiracy conviction even though the defendant knew that he was
selling pseudoephedrine to someone who used this product to manufacture
methamphetamine. This knowledge was insufficient to establish that the
defendant shared an intent to achieve the illicit objective.
Id. Like
the defendant in
Maldonado, Defendant here may have suspected that
Bouton would do something illegal with the mail, although the State’s own
evidence indicated that the mail did not indicate that there were checks
inside. [DS 3] The State argues that
Maldonado is distinguishable
because it involved a legal sale, instead of a criminal act, i.e. the theft of
mail. [MIO 4-5] However, even if the jury could reasonably infer that Defendant
agreed with Bouton to steal mail, this is short of proof of an objective of
what to do with the mail.
See State v. Vigil,
2010-NMSC-003, ¶
20,
147 N.M. 537,
226 P.3d 636 (reversing a conviction because the “chain of
inferences” supporting the verdict amounted to no more than “guess or
conjecture” and stating that the jury may not speculate to reach the
conclusions necessary to the verdict). Although the State relies on Defendant’s
knowledge that Bouton had committed forgery in the past to argue that the
agreement was complete upon the taking of the mail [MIO 5-7], this would also
have been true in
Maldonado—an argument that this Court has rejected.
{6} For the reasons set
forth above, we reverse Defendant’s conviction.
LINDA M. VANZI, Chief Judge