1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 28,320

5 PHYLLIS GENT,

6 Defendant-Appellant. 

7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 

8 Karen L. Parsons, District Judge

9 Gary K. King, Attorney General

10 Margaret McLean, Assistant Attorney General

11 Santa Fe, NM

12 for Appellee

13 Adam D. Rafkin, P.C.

14 Adam D. Rafkin

15 Ruidoso, NM

16 for Appellant

17 MEMORANDUM OPINION

18 VIGIL, Judge.

19 Convicted of two counts of harboring or aiding a felon, contrary to NMSA

20 1978, Section 30-22-4 (1963), Defendant appeals, arguing that the State failed to

21 present any evidence that Defendant knew she was harboring or aiding individuals

22 who had committed a felony. We affirm.
2

1 BACKGROUND

2 In the early morning hours of December 23, 2006, the nephew of Defendant’s

3 boyfriend, Esmeregildo “Esse” Almager (Esse), and Esse’s girlfriend, Tiffany Gurule

4 (Tiffany), perpetrated a home invasion and aggravated burglary in Lincoln County,

5 New Mexico. It is uncontested that after the crime, Defendant rented a motel room

6 at the Super 8 Motel, in her own name, for Esse and Tiffany. Esse and Tiffany were

7 later apprehended at the Super 8 Motel. 

8 At the trial, Tiffany testified on behalf of the State. She stated, in relevant part,

9 that sometime after the crime, Esse arrived to pick up her and Alyssia (Esse’s

10 daughter) from Esse’s grandmother’s house. Tiffany testified that Esse was driving

11 an unfamiliar vehicle that Tiffany later saw Defendant driving. Tiffany stated that she

12 and Esse drove to Defendant’s home, and that when they arrived, Defendant was in

13 the house with Defendant’s boyfriend (who is also Esse’s uncle) Filbert, and Esse’s

14 brother Patricio. Tiffany testified that Filbert and Patricio were listening to police

15 scanners and that Defendant was in the same room. Tiffany stated that Defendant said

16 she wanted Esse and Tiffany to stay at Defendant’s house so they would not get

17 caught by the police. Tiffany testified that Defendant offered to say that Esse and

18 Tiffany were in Defendant’s home all night. Tiffany stated that once she and Esse

19 decided to rent a motel room, Defendant drove them to one motel where there were
3

1 no vacancies and then to the Super 8 Motel, where Defendant rented a room and gave

2 Esse and Tiffany the room key. Tiffany testified that it was Defendant’s idea to rent

3 the room in Defendant’s name so that Esse and Tiffany would not get caught.

4 The State presented testimony from Sergeant Robert Shepperd that he asked

5 Defendant several times later that morning where Esse and Tiffany were and that

6 Defendant replied that she had no idea because she had not seen them. Sergeant

7 Shepperd testified that he told Defendant that he knew that Esse and Tiffany had

8 Alicia earlier that morning, and Defendant replied that Alicia had been with Defendant

9 since the previous day, which Sergeant Shepperd knew was untrue. Sergeant Shepperd

10 testified that he requested a BOLO (be on the lookout) for Esse and Tiffany and their

11 vehicle to be put out to other agencies in the area and that this information could have

12 been intercepted by a police scanner such as the one being used in Defendant’s home.

13 Sergeant Shepperd also stated that when a BOLO is issued, the call will normally

14 include the type of crime that was committed to ensure the officer’s safety.

15 The state also presented testimony from Katie Cuellar, a parole officer with the

16 New Mexico Department of Adult Probation and Parole who was present when

17 Defendant answered questions from Sergeant Shepperd. She heard Defendant tell

18 Sergeant Shepperd that Esse and Tiffany were not at the house.

19 DISCUSSION
4

1 Defendant challenges the sufficiency of the evidence supporting her convictions

2 for harboring or aiding a felon. She argues that the State failed to present any

3 evidence that Defendant knew she was harboring or aiding individuals who had

4 committed a felony. We engage a two step analysis used to evaluate a sufficiency

5 challenge to a conviction. First, we “view the evidence in the light most favorable to

6 the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the

7 evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128

8 N.M. 711, 998 P.2d 176. Second, we “make a legal determination of whether the

9 evidence viewed in this manner could justify a finding by any rational trier of fact that

10 each element of the crime charged has been established beyond a reasonable doubt.”

11 State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation

12 marks and citation omitted). “The reviewing court does not weigh the evidence or

13 substitute its judgment for that of the fact finder as long as there is sufficient evidence

14 to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950

15 P.2d 789. “Jury instructions become the law of the case against which the sufficiency

16 of the evidence is to be measured.” State v. Smith, 104 N.M. 729, 730, 726 P.2d 883,

17 884 (Ct. App. 1986).

18 In the present case, for the offense of harboring or aiding a felon, the jury was

19 instructed to consider whether the State had proven the following elements beyond a
5

1 reasonable doubt:

2 1. [D]efendant concealed or gave aid to [Esse and Tiffany]

3 with the intent that [Esse and Tiffany] escape, avoid arrest, trial,

4 conviction or punishment;

5 2. [D]efendant knew that [Esse and Tiffany] committed

6 [b]urglary;

7 3. This happened in New Mexico on or about the 23rd day of

8 December[] 2006.

9 The defense theory was that despite the evidence indicating Defendant’s

10 substantial involvement with Esse and Tiffany on the day they committed a home

11 invasion, Defendant was unaware that they had committed a felony. Although we

12 acknowledge that Defendant testified that she had no knowledge of the crime, the jury

13 was free to reject Defendant’s testimony. See State v. Rojo, 1999-NMSC-001, ¶ 19,

14 126 N.M. 438, 971 P.2d 829 (filed 1998). Knowledge is often proved beyond a

15 reasonable doubt by circumstantial evidence. See, e.g., State v. Castañeda,

16 2001-NMCA-052, ¶ 21, 130 N.M. 679, 30 P.3d 368 (observing that generally a

17 defendant’s state of mind is proved by circumstantial evidence). 

18 Viewing the evidence in the light most favorable to the verdict, and indulging

19 all reasonable inferences in favor of the verdict, we hold that the circumstantial

20 evidence presented was sufficient to support a rational fact-finder’s determination that

21 Defendant knew that Tiffany and Esse had committed a felony when she harbored or
6

1 aided them. 

2 CONCLUSION

3 We affirm the judgment and sentence of the district court.

4 IT IS SO ORDERED.

5 ________________________________

6 MICHAEL E. VIGIL, Judge

7 WE CONCUR: 

8 ________________________________

9 CYNTHIA A. FRY, Chief Judge

10 ________________________________

11 TIMOTHY L. GARCIA, Judge