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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 29,780 9 MICHAEL ELAWAR, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 12 William G.W. Shoobridge, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Francine A. Chavez, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Hugh W. Dangler, Chief Public Defender 19 Adrianne R. Turner, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 WECHSLER, Judge. 242 Defendant appeals from his conviction of two counts of receiving stolen 1 property—a second-degree felony for retaining 600 gallons of diesel fuel and a fourth2 degree felony for retaining a homemade dies el tank trailer. [RP 49-50, 79] In 3 Defendant’s docketing statement, he argue d that there was insufficient evidence to 4 support his convictions. This Court issued a first notice of proposed summary 5 disposition, proposing to affirm. De fendant responded with a memorandum in 6 opposition in which he sought to amend th e docketing statement to raise a double 7 jeopardy claim for the first time on appeal. The Court granted Defendant’s motion 8 and proposed to reverse his c onviction for the fourth-degree felony and to affirm his 9 conviction for the second-degree felony. The State has filed a memorandum 10 indicating that it does not disagree w ith the proposed summary reversal of 11 Defendant’s fourth-degree felony convicti on. Defendant has filed a memorandum in 12 which he agrees with our proposed reversalof his fourth-degree felony conviction, but 13 continues to maintain that there is insu fficient evidence to support his conviction for 14 the second-degree felony. As Defendant ’s memorandum raises no new facts or 15 arguments that would warrant reversal of his conviction for the second-degree felony, 16 we now affirm that conviction and reverse his conviction for the fourth-degree felony. 17 Sufficiency of the Evidence 18 Pursuant to State v. Franklin , 78 N.M. 127, 428 P.2d 982 (1967), and State v. 193 Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985) [Def.’s 1 st MIO 9; Def.’s 2 ndMIO 1 2], Defendant contends that there was insufficient evidence to support the jury’s 2 conclusion that he knew or believed that the trailer and dies el fuel he was transporting 3 were stolen [DS 3-5], that th ere was insufficient evidence toestablish the market value 4 of the fuel [DS 1, 5-6], and that there wa s insufficient evidence toestablish the market 5 value of the fuel trailer [DS 1, 6-7]. In this Court’s first notice of proposed summary 6 disposition, we proposed to hold that, viewi ng the evidence in the light most favorable 7 to the verdict, there was sufficient evidence to support Defendant’s convictions. As 8 neither Defendant’s first nor his sec ond memorandum in oppositi on provides any new 9 factual information or legal analysis that would persuade this Court otherwise, we 10 hold that the evidence was sufficient for the reasons stated in our first notice. 11 Double Jeopardy 12 In this Court’s second notice of proposed summary disposition, we proposed 13 to hold that pursuant to Sanchez v. State , 97 N.M. 445, 446, 640 P.2d 1325, 1326 14 (1982), Defendant’s two convictions for receiving stolen property violated double 15 jeopardy. In Sanchez , our Supreme Court stated that if a defendant is charged with 16 receiving stolen property, “each[act of] ‘receiving’ of the stolen property is a separate 17 crime and the defendant may becharged with a separate o ffense for each.” We stated 18 that in this case, it appear s that there was evidence thatwould establish only one act 194 of receiving, which included both the fuel and the fuel trailer, and that there was no 1 evidence of any indicia of distinctness to separate the act of receiving the fuel and 2 receiving the fuel trailer. Accordingly, we proposed to hold that Defendant’s two 3 separate convictions violated double jeopardy and to reverse his conviction for the 4 fourth-degree felony. See State v. Garcia , 2009-NMCA-107, ¶ 17, 147 N.M. 150, 217 5 P.3d 1048 (reversing the convic tion with the lesser penalty upon a finding of a double 6 jeopardy violation) , cert. denied No. 31,853 (Aug 18, 2009). 7 Both Defendant and the State have filed memoranda in which they indicate their 8 support for our proposed summary reversal ofDefendant’s conviction for the fourth9 degree felony of receiving stolen property. The State, however, asserts that although 10 the judgment lists Defendant’s convictions as “receiving” stolen property [RP 79], the 11 criminal information, the evidence presented at trial, and the jury instructions 12 indicated that the factual predicate for th ese charges was “retaining” stolen property. 13 We agree with the State, and we also agree that as the analysis for “retaining” stolen 14 property is the same as that for “receiving”stolen property, because the simultaneous 15 possession of stolen items is a single act constituting a single offense, see Sanchez , 97 16 N.M. at 446, 640 P.2d at 1326, Defendant’s two convictions violated double jeopardy. 17 Accordingly, we reverse Defendant’s c onviction for the fourth-degree felony of 18 receiving stolen property. 195 Therefore, for the reasons provided in this opinion and in our first and second 1 notices of proposed summary disposition, we affirm Defendant’s second-degree 2 felony conviction and reverse his fourth-degree felony conviction. 3 IT IS SO ORDERED. 4

_______________________________ 5 JAMES J. WECHSLER, Judge 6 WE CONCUR: 7

________________________________ 8 CELIA FOY CASTILLO, Judge 9

________________________________ 10 TIMOTHY L. GARCIA, Judge 11