Opinion
NO. 35,924
04-19-2017
STATE OF NEW MEXICO, Plaintiff-Appellee, v. FRANCES G. OCHOA, Defendant-Appellant.
Hector H. Balderas, Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM for Appellant
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Angie K. Schneider, District Judge Hector H. Balderas, Attorney General
Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM for Appellant
MEMORANDUM OPINION
GARCIA, Judge. {1} Defendant appeals her convictions for shoplifting (over $500) and conspiracy to shoplift. We issued a calendar notice proposing to affirm. Defendant has responded with a memorandum in opposition. Not persuaded that our calendar notice was incorrect, we affirm the district court judgment and sentence. {2} Defendant continues to challenges the sufficiency of the evidence to support her convictions for shoplifting (over $500) and conspiracy to shoplift (over $500). 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} In order to convict Defendant of these two offenses, the evidence had to show that Defendant took merchandise valued over $500 without intending to pay for it, and acted in concert with another individual who also agreed to participate in the shoplifting. [RP 116, 118] Here, the State presented evidence through the testimony of a witness and a video that indicated Defendant and a man went through a self-checkout together, and Defendant placed some of the items in the bag without them being scanned by herself or the other individual. [MIO 1; DS 3] Among the items that was not scanned was an expensive baby monitor. [MIO 1; DS 3] Defendant admitted her plan to take some of the items, but she denied an intent to take the baby monitor. [MIO 2; DS 3] The jury, sitting as fact-finder, was free to reject Defendant's claim that she did not intend to steal the baby monitor. [MIO 5] See State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that the fact-finder is free to reject a defendant's version of events). The jury could also reasonably infer that Defendant and the other individual conspired to go through the self-check out lane without paying for some of the items. See 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). {4} For the reasons set forth above, we affirm.
{5} IT IS SO ORDERED.
/s/ _________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
/s/ _________
J. MILES HANISEE, Judge /s/ _________
JULIE J. VARGAS, Judge