Court of Appeals of New Mexico

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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
FRANCES G. OCHOA,
Defendant-Appellant.

No. 35,924

COURT OF APPEALS OF NEW MEXICO

April 19, 2017

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY, Angie K. Schneider, District Judge

COUNSEL

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

JUDGES

TIMOTHY L. GARCIA, Judge. WE CONCUR: J. MILES HANISEE, Judge, JULIE J. VARGAS, Judge

AUTHOR: TIMOTHY L. GARCIA

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.

TIMOTHY L. GARCIA, Judge

WE CONCUR:

J. MILES HANISEE, Judge

JULIE J. VARGAS, Judge