IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. NO. 28,320 4 PHYLLIS GENT, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 7 Karen L. Parsons, District Judge 8 Gary K. King, Attorney General 9 Margaret McLean, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Adam D. Rafkin, P.C. 13 Adam D. Rafkin 14 Ruidoso, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 18 Convicted of two counts of harboring or aiding a felon, contrary to NMSA 19 1978, Section 30-22-4 (1963), Defendant app eals, arguing that the State failed to 20 present any evidence that Defendant knew she was harboring or aiding individuals 21 who had committed a felony. We affirm. 222 BACKGROUND 1 In the early morning hours of December 23, 2006, the nephew of Defendant’s 2 boyfriend, Esmeregildo “Esse” Almager (Esse ), and Esse’s girl friend, Tiffany Gurule 3 (Tiffany), perpetrated a home invasion and aggravated burglary in Lincoln County, 4 New Mexico. It is uncontested that after the crime, Defendant rented a motel room 5 at the Super 8 Motel, in her own name, fo r Esse and Tiffany. Esse and Tiffany were 6 later apprehended at the Super 8 Motel. 7 At the trial, Tiffany testified on behalf of the State. Sh e stated, in relevant part, 8 that sometime after the crime, Esse arrived to pick up her and Alyssia (Esse’s 9 daughter) from Esse’s grandmother’s house. Tiffany testified that Esse was driving 10 an unfamiliar vehicle that Tiffany later saw De fendant driving. Tiffany stated that she 11 and Esse drove to De fendant’s home, and that when they arrived, Defendant was in 12 the house with Defendant’s boyfriend (who is also Esse’s uncle) Filbert, and Esse’s 13 brother Patricio. Tiffany testified that F ilbert and Patricio were listening to police 14 scanners and that Defendant was in the same room. Tiffany stated that Defendant said 15 she wanted Esse and Tiffany to stay at Defendant’s house so they would not get 16 caught by the police. Tiffany te stified that Defendant offered to say that Esse and 17 Tiffany were in Defendant’s home all night. Tiffany stated that once she and Esse 18 decided to rent a motel room, Defendant drove them to one motel where there were 193 no vacancies and then to the Super 8 Motel, where Defendant rent ed a room and gave 1 Esse and Tiffany the room key. Tiffany tes tified that it was Defe ndant’s idea to rent 2 the room in Defendant’s name so thatEsse and Tiffany would not get caught. 3 The State presented testimony from Sergean t Robert Shepperd that he asked 4 Defendant several times later that morn ing where Esse and Tiffany were and that 5 Defendant replied that she had no idea b ecause she had not seen them. Sergeant 6 Shepperd testified that he told Defendant that he knew that Esse and Tiffany had 7 Alicia earlier that morning, and Defendant replied that Alicia had been with Defendant 8 since the previous day, which Sergeant Sh epperd knew was untrue. Sergeant Shepperd 9 testified that he requested a BOLO (be on the lookout) for Esse and Tiffany and their 10 vehicle to be put out to other agencies in the area and that this information could have 11 been intercepted by a police scanner such as the one being used in Defendant’s home. 12 Sergeant Shepperd also stated that whena BOLO is issued, the call will normally 13 include the type of crime that was co mmitted to ensure the officer’s safety. 14 The state also presented testimony from KatieCuellar, a parole officer with the 15 New Mexico Department of Adult Probation and Parole who was present when 16 Defendant answered questions from Sergean t Shepperd. She heard Defendant tell 17 Sergeant Shepperd that Esse and Tiffany were not at the house. 18 DISCUSSION 194 Defendant challenges the sufficiency of the evidence supporting her convictions 1 for harboring or aiding a felon. She ar gues that the State failed to present any 2 evidence that Defendant knew she was harboring or aiding individuals who had 3 committed a felony. We engage a two step analysis used to evaluate a sufficiency 4 challenge to a conviction. First, we “vie w the evidence in the li ght most favorable to 5 the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the 6 evidence in favor of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 7 N.M. 711, 998 P.2d 176. Second, we “make a legal determination of whether the 8 evidence viewed in this manner could justif y a finding by any rational trier of fact that 9 each element of the crime charged has been established beyond a reasonable doubt.” 10 State v. Apodaca , 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation 11 marks and citation omitted). “The review ing court does not weigh the evidence or 12 substitute its judgment for that of the fact finder as long as there is sufficient evidence 13 to support the verdict.” State v. Mora , 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 14 P.2d 789. “Jury instructions become the law of the case against which the sufficiency 15 of the evidence is to be measured.” State v. Smith , 104 N.M. 729, 730, 726 P.2d 883, 16 884 (Ct. App. 1986). 17 In the present case, for the offense of harboring or aiding a felon, the jury was 18 instructed to consider whether the Stat e had proven the following elements beyond a 195 reasonable doubt: 1 1. [D]efendant concealed or gave aid to [Esse and Tiffany] 2 with the intent that [Esse and Ti ffany] escape, avoid arrest, trial, 3 conviction or punishment; 4 2. [D]efendant knew that [E sse and Tiffany] committed 5 [b]urglary; 6 3. This happened in New Mexico on or about the 23rd day of 7 December[] 2006. 8 The defense theory was that despitethe evidence indicating Defendant’s 9 substantial involvement with Esse and Tiffany on the day they committed a home 10 invasion, Defendant was unaware that they had committed a felony. Although we 11 acknowledge that Defendant testified that she had no knowledge of the crime, the jury 12 was free to reject Defendant’s testimony. See State v. Rojo , 1999-NMSC-001, ¶ 19, 13 126 N.M. 438, 971 P.2d 829 (filed 1998). Knowledge is ofte n proved beyond a 14 reasonable doubt by circumstantial evidence. See, e.g. , State v. Castañeda , 15 2001-NMCA-052, ¶ 21, 130 N.M. 679, 30 P. 3d 368 (observing that generally a 16 defendant’s state of mind is proved by circumstantial evidence). 17 Viewing the evidence in the light most favorable to the verdict, and indulging 18 all reasonable inferences in favor of the verdict, we hold that the circumstantial 19 evidence presented was sufficient to support a rational fact-finder’s determination that 20 Defendant knew that Tiffany and Esse had committed a felony when she harbored or 216 aided them. 1 CONCLUSION 2 We affirm the judgment and sentence of the district court. 3 IT IS SO ORDERED. 4

___________________ _____________ 5 MICHAEL E. VIGIL, Judge 6 WE CONCUR: 7

________________________________ 8 CYNTHIA A. FRY, Chief Judge 9

________________________________ 10 TIMOTHY L. GARCIA, Judge 11