This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 31,241 9 ADRIAN GONZALES , 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 12 William G. Shoobridge, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Jacqueline L. Cooper, Acting Chief Public Defender 17 Kathleen T. Baldridge, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 VANZI, Judge. 222 Defendant appeals his convictions for shoplifting over $2500 and conspiracy 1 to shoplift. We proposed to affirm in a calendar notice, and we have received a 2 memorandum in opposition to our notice and a motion to amend the docketing 3 statement. We have duly considered Defendant’s arguments, but we find them 4 unpersuasive. We deny the motion to amend the docketing statement. We affirm. 5 Defendant claims that he did not “willf ully take possession of or conceal any 6 merchandise” with the intent to convert it without paying for it and he did not engage 7 in a conspiracy to do so. [MIO 1] Defendant contends that there were several items 8 that had no store tags and, without valuesfor the items, the evidence was insufficient 9 to support the convictions. According to Defendant, the evidence showed that the 10 value of the stolen items was less than $2500, and therefore, the district court erred 11 in denying the instruction offere d for shoplifting items under $2500. 12 The store manager testified that she used the computer databaseto find the retail 13 price of each item taken, but she could not say “what the actual sale price of each item 14 was” on the day of the theft. [MIO 5] There were items without store tags, but they 15 were items carried by the store. [MIO 9] The list price of an item presumptively 16 represents the seller’s determination of wh at a customer is willing to pay, and it is 17 prima facie proof of value. See State v. Contreras , 1996-NMCA-045, ¶ 6, 121 N.M. 18 550, 915 P.2d 306. Defendant could have rebutted the ev idence by showing that the 193 store typically offers discounts for the merchandise. See id. There is nothing to 1 indicate that Defendant offered such proof . Instead, Defendant seeks to eliminate 2 from the total value of the merchandise all items that had no store tag. We propose 3 to hold that the evidence presented, and not rebutted by Defendant, was sufficient to 4 support the conviction. Accordingly, we propose to hold thatit was not error to refuse 5 Defendant’s proffered instructions desc ribing a lower value for the merchandise. 6 Defendant claims that there was insuffici ent evidence to show that he engaged 7 in a conspiracy to commit shoplifting. De fendant claims that there was no evidence 8 to show that he agreed with another, by words or acts, to co mmit the crimes. Based 9 on the docketing statement and the memo randum in opposition, the evidence showed 10 that Defendant entered the store with co-def endants, he stood near the entrance of the 11 store during the time that the items were stol en, he left the store with co-defendants, 12 he got into a car with co-defendants, and when the car was stopped, Defendant was 13 sitting on top of one of the stolen items. Although conspiracy requires an agreement, 14 an agreement can be found wh en there is a mutually implied understanding as shown 15 by cooperative actions of those charged with the crime. State v. Roper , 2001-NMCA16 093, ¶ 8, 131 N.M. 189, 34 P.3d 133. The agreement underlying a conspiracy need 17 not be verbal and can be shown by circumstantial evidence; the agreement can be 18 established by acts showing that Defendant knew of and participated in the plan to 194 commit the offense. See State v. Gallegos , 2011-NMSC-027, ¶ 26, 149 N.M. 704, 254 1 P.3d 655. The evidence was sufficient to support Defendant’s conviction for 2 conspiracy. 3 For the reasons discussed in this opini on and in our calendar notice, we affirm 4 Defendant’s convictions. 5 IT IS SO ORDERED. 6

__________________________________ 7 LINDA M. VANZI, Judge 8 WE CONCUR: 9

_________________________________ 10 JONATHAN B. SUTIN, Judge 11

_________________________________ 12 RODERICK T. KENNEDY, Judge 13