This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 28,014 9 ANTJUAN MCGHEE, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 12 Charles C. Currier, District Judge 13 Gary K. King, Attorney General 14 Farhan Khan, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Liane E. Kerr 18 Albuquerque, NM 19 for Appellant 20 MEMORANDUM OPINION 21 WECHSLER, Judge. 22 Defendant Antjuan McGhee appeals from the district court’s judgment, 23 sentence and commitment. He was convictedafter a jury trial of (1) attempt to 242 commit a violent felony—first degree murd er, with a firearm enhancement; (2) 1 robbery, with a firearm enhancement; (3) c onspiracy to commit first degree murder; 2 and (4) possession of a firearm by a felon. He contends on appealthat the evidence 3 at trial was insufficient to support his convi ctions of attempt to commit first degree 4 murder, robbery, and conspiracy to commit first degree murder. We affirm. 5 STANDARD OF REVIEW 6 Substantial evidence is relevant evidence that a reasonable mind might 7 accept as adequate to support a conclu sion. In reviewing the sufficiency 8 of evidence used to support a convicti on, we resolve all disputed facts in 9 favor of the State, indulge all reasonable inferences in support of the 10 verdict, and disregard all evidence and inferences to the contrary. 11 Contrary evidence supporting acquittal does not provide a basis for 12 reversal because the jury is free to reject Defendant’s version of the facts. 13 State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (citations omitted). 14 Applying this standard of review, we a ddress Defendant’s arguments by stating the 15 evidence that supports the jury’s verdict. 16 TESTIMONY OF JAMES HILL 17 James Hill testified at trial to the events that occurred. He went to the 18 apartment of his friend, Cassandra Luna, to look at a TV that was for sale. Defendant 19 was at the apartment when he arrived. Defendant took Hill to another apartment to 20 see the TV. In that apartment, four girl s were sitting on a couc h and a heavy set man 21 wearing a dark “hoodie” over his head was acr oss the room. Defendant escorted Hill 22 to another room, and when Hill observed that there was no TV in that room, he turned 233 and saw the man wearing the hoodie pointi ng a gun at his head demanding his wallet. 1 The man wearing the hoodie punched Hill more than once, and said, “[h]urry up, I’m 2 not kidding.” Hill charged at the man wearing the hoodie, and in the ensuing scuffle, 3 they fell to the ground. While on the ground, one of the girls from the couch 4 attempted to reach into Hill’s back pocket, and he kicked her aside. The man wearing 5 the black hoodie passed the gun to Defendant and told him to “[q]uit fucking around. 6 Shoot him.” A brief pause ensued, followe d by another order to “fucking shoot him.” 7 Defendant shot at Hill, and he moved his head such that the bullet grazed the side of 8 his head. Hill then removed his wallet from his pants, gave it to Defendant, and left 9 the apartment. 10 ATTEMPT TO COMMIT FIRST DEGREE MURDER 11 The jury received two instructions cont aining the elements of attempted first 12 degree murder. The first instruction requi red the State to prove beyond a reasonable 13 doubt that: 14 1. The defendant intended to commit the crime of murder; 15 2. The defendant began to do an act which constituted a 16 substantial part of the murder but failed to commit the 17 murder; 18 3. This happened in New Mexico on or about the 27 thday of 19 October, 2006. 20 The second instruction concerned the el ement of deliberate killing and required 214 the State to prove beyond a reasonable doubt that: 1 1. The defendant killed James Hill; 2 2. The killing was with deliberate intention to take away the 3 life of James Hill; 4 3. This happened in New Mexico on or about the 27 thday of 5 October, 2006. 6 The district court further defined for the jury the meaning of the second element of 7 this instruction. 8 A deliberate intention refers to th e state of mind of the defendant. 9 A deliberate intention may be in ferred from all of the facts and 10 circumstances of the killing. The wo rd deliberated means arrived at or 11 determined upon as a result of careful thought and the weighing of the 12 consideration for and against the propos ed course of action. A calculated 13 judgment and decision may be arrived at in a short period of time. A 14 mere unconsidered and rash impulse , even though it includes an intent 15 to kill, is not a deliberate intention to kill. To constitute a deliberate 16 killing, the slayer must weigh and c onsider the question of killing and his 17 reasons for and against such choice. 18 Defendant does not contend that these instructions were an incorrect statement 19 of the law. He argues that there was insu fficient evidence of his “‘willful, deliberate 20 and premeditated’ intention to kill James H ill.” He points to the lack of physical 21 evidence and testimony of persons present and notes the testimony of Detective Lisa 22 Brackeen that she did not believe that there was a “planned event” but rather “more 23 of a spur of the moment response to the fi ght.” Yet, as Defendant acknowledges, even 24 in the absence of direct evidence, circum stantial evidence can be sufficient to support 255 a finding of intent. State v. Durant , 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 1 495 (recognizing that “[i]ntent can rarely beproved directly and often is proved by 2 circumstantial evidence”). 3 As stated in the jury instructions, the jury had the obligation to determine 4 whether Defendant “weigh[ed] and consider[e d] the question of killing” or, to reach 5 the opposite conclusion, acted in an “unconsid ered and rash impulse .” It had before 6 it evidence that the man wearing the hoodie told Defendant to “[q]uit fucking around. 7 Shoot him.” This was followed by a similar order to “fucking shoot him.” The jury 8 could have reasonably concluded that duri ng the gap in time, De fendant weighed and 9 considered whether to shoot and deliberatel y concluded to do so. A deliberate intent 10 may be formed within a short period of time. State v. Blea , 101 N.M. 323, 326, 681 11 P.2d 1100, 1103 (1984); State v. Lucero , 88 N.M. 441, 443, 541 P.2d 430, 432 (1975). 12 Defendant’s shooting at Hill’s head from s hort range was additional evidence that he 13 intended to kill Hill. 14 Detective Brackeen’s testimony does not detract from this conclusion. Even if 15 it can be interpreted to mean that De fendant’s actions were not weighed and 16 considered, the jury was not obligated to credit her testimony. See State v. Salazar , 17 1997-NMSC-044, ¶ 44, 123 N.M. 778, 945 P.2d 996 (“The fact finder may reject a 18 defendant’s version of the facts.” (int ernal quotation marks and citation omitted)). 19 There was substantial evidence supporting the ju ry’s verdict of attempt to commit first 206 degree murder. 1 ROBBERY 2 The jury instruction for the robbery ch arge required the jury to find beyond a 3 reasonable doubt that: 4 1. The defendant took and carri ed away a wallet from James 5 Hill or from his immediate control intending to 6 permanently deprive James Hill of the wallet; 7 2. The defendant was armed with a firearm; 8 3. The defendant took the wallet by force; 9 4. This happened in New Mexico on or about the 27 thday of 10 October, 2006. 11 Defendant does not argue thatthe evidence does not support the first, second, and 12 fourth elements of this instruction. 13 Defendant contends that the third el ement was not met because he did not 14 exercise the force or threat of force that was the “lever” that separated the wallet from 15 Hill. See State v. Lewis , 116 N.M. 849, 851, 867 P.2d 1231, 1233 (Ct. App. 1993) 16 (stating that, in order to convict for the offe nse of robbery, “the us e or threatened use 17 of force must be the factor by which the property is removed from the victim’s 18 possession”). Defendant argues that he di d not demand Hill’s wallet, that the man 19 wearing the hoodie did not tell him to rob Hill but to shoot him, and that “the impetus 20 of the gun was too attenuated to support the charge of robbery.” 217 However, in considering Defendant’s sufficiency of the evidence argument, we 1 “indulge all reasonable inferences in support of the verdict.” Rojo , 1999-NMSC-001, 2 ¶ 19. It was reasonable for the jury to conc lude that the events were related and that 3 the demand of Hill’s wallet by the man w earing the hoodie, the passing of the gun to 4 Defendant, and the demand thatDefendant shoot Hill were related to Defendant’s use 5 of force by shooting Hill. It was also reasonable for the jury to conclude that 6 Defendant’s use of the gun contributed to Hill’s giving Defendant possession of his 7 wallet. There was sufficient evidence to support the robbery conviction. 8 CONSPIRACY TO COMMIT FIRST DEGREE MURDER 9 The jury instruction for conspiracy to commit murder required the jury to find 10 that: 11 1. The defendant and another person by words or acts agreed 12 together to commit murder; 13 2. The defendant and the other person intended to commit 14 murder; 15 3. This happened in New Mexico on or about the 27 thday of 16 October, 2006. 17 Defendant does not challe nge that the instruction properly stated the law 18 relevant to the charge. He argues that “there was no evidence that . . . Defendant and 19 the hooded person acted in concert in committing the attempted murder of James 20 Hill.” Specifically, he argues that the man with the hoodie told Defendant to “shoot” 218 rather than “kill” Hill. 1 However, Defendant acknowledges that “[a] mutually implied understanding 2 is sufficient” to support a conspiracy. State v. Armijo , 90 N.M. 12, 14, 558 P.2d 1151, 3 1153 (Ct. App. 1976) (internal quotation marks and citation omitted). The common 4 design required “is ge nerally a matter of inference deduced from the facts and 5 circumstances, and from the acts of the person accused.” Id. (internal quotation marks 6 and citation omitted). 7 There was evidence that the man w earing the hoodie passed Defendant a gun 8 and told him to shoot Hill. Defendant paused and, when to ld again, shot at Hill’s head 9 from close range. When we view this evid ence in the light most favorable to the 10 jury’s verdict, State v. Apodaca , 118 N.M. 762, 766, 887 P.2d 756, 760 (1994), there 11 was sufficient evidence from which the jury could have reasonably concluded that 12 Defendant and the man wearing the hoodie had a mutually implied understanding that 13 Defendant was to shoot to kill Hill. The fact that the man wearing the hoodie said 14 “shoot” instead of “kill” is not determin ative as Defendant argues. Given the 15 circumstances of Defendant’s close proxi mity to Hill when the man wearing the 16 hoodie passed Defendant the gun, it was reasonable for the jury to conclude that the 17 intent was to shoot to kill. 18

CONCLUSION 199 We affirm Defendant’s convictions. 1

________________ ________________ 2 JAMES J. WECHSLER, Judge 3 WE CONCUR: 4

______________________________ 5 CYNTHIA A. FRY, Chief Judge 6

______________________________ 7 JONATHAN B. SUTIN, Judge 8