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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 29,690 9 SOLOMON PENA, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Kenneth H. Martinez, 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 Jacqueline L. Cooper, Acti ng Chief Public Defender 19 Kathleen T. Baldridge, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 SUTIN, Judge. 242 Defendant Solomon Pena’s charges arose from nighttime burglaries of four 1 retail stores in Albuquerque, New Mexico, during which various electronic items and 2 jewelry were stolen. He appeals his convictions on four counts of commercial 3 burglary, four counts of conspiracy to commit commercial burglary, two counts of 4 larceny (over $500 but no more than $2,500) , two counts of larceny (over $2,500 but 5 no more than $20,000), and three counts of c ontributing to the delinquency of a minor. 6 And he raises two issues, sufficiency of the evidence, and whether the jury 7 instructions’ failure to define “market value” constituted fundamental error. We 8 affirm. 9 Sufficiency of the Evidence 10 We apply a substantial evidence standard of review as set out in State v. Duran , 11 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515, State v. Cunningham , 12 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176, State v. Sutphin , 107 N.M. 126, 13 130-31, 753 P.2d 1314, 1318-19 (1988), and State v. Robinson , 94 N.M. 693, 696, 616 14 P.2d 406, 409 (1980). 15 Commercial Burglary and Larceny 16 The charges arose from Defendant’s unauthorized entries of and larcenies from 17 four different businesses inAlbuquerque over a two-and-a-half week period. The 18 burglaries and larcenies involved a Has tings store at 12501 Candelaria NE, on or 193 about December 28, 2006 (over $2,500 but no more than $20,000) (Counts 5 and 6); 1 a Kmart store at 2100 Carlisle NE, on orabout December 31, 2006 (over $500 but no 2 more than $2,500) (Counts 9 and 10); a Circuit City store at 10420 Coors By-Pass 3 NW, on or about January 7, 2007 (over $500 but no more than $2,500) (Counts 17 and 4 18); and a Toys R Us store at 3701 Ellis on NW, on or about January 14, 2007 (over 5 $2,500 but no more than $20,000) (Counts 21 and 22). 6 As to commercial burglary, the jury was instructed that the State must prove: 7 1. . . . [D]efendant entered a st ructure without authorization, 8 to wit: [name of store and location]; 9 2. . . . [D]efendant entered the structure with the intent to 10 commit a theft when inside[.] 11 SeeUJI 14-1630 NMRA; NMSA 1978, § 30-16-3(B) (1971). As to larceny, the jury 12 was instructed that the State must prove: 13 1. . . . [D]efendant took and carried away various items 14 belonging to [name of store] or another, which had a market value over 15 [$500 or $2,500] but no more than $[2,500 or $20,000]; 16 2. At the time he took this property, . . . [D]efendant intended 17 to permanently deprive the owner of it[.] 18 SeeUJI 14-1601 NMRA; NMSA 1978, § 30-16-1 (2006). 19 Nancy Droll’s trial testimony identified De fendant as a participant in all four 20 burglaries. She testified that Defendant had been her boyfriend and that they had lived 21 together for a little over a year, ending on January 17, 2007, wh en he moved out. 224 Defendant admitted to her that he had participated in the burglary of the Hastings store 1 on December 28, 2006, and Dro ll testified that Defendant had brought back X-Boxes, 2 games for X-Boxes, and movies from Hastings. Defendant also told Droll that he had 3 participated in the burglary of the Kmart store on December 31, 2006. She testified 4 about seeing “the things that he brought back” from Kmart, su ch as, “[a] lot of 5 jewelry, a TV, movies, DVDs, [and] games.” Defendant also admitted to Droll that 6 he was involved in the burglary of a Circu it City on January 7, 2007, and she testified 7 that she saw iPods and games that Defe ndant had brought back from Circuit City. 8 Droll knew Defendant was involved in the January 14, 2007, burglary of the Toys R 9 Us store because she had beenthere herself as the driver . She saw Defendant and two 10 others come out of the store with PlayStation 2s and games. Finally, Droll identified 11 Defendant by his clothing in security surveillance videotapes of the Toys R Us 12 burglary on January 14, 2007, and the Kmart burglary on December 31, 2006. 13 Droll’s testimony also constituted evidence of the four larcenies, as she testified 14 regarding the specific items Defendant brought back from each burglary. Store 15 personnel provided additional evidence as to the nature and value of the items taken. 16 Rick Taylor, store manager at the Hastings burglarized on December 28, 2006, 17 testified that ten to twelve X-Boxes withan average value of $400 each, eight to ten 18 PlayStation Portables worth $100 to $200 each , and about eighty X-Box games worth 195 an average of $30 each were stolen. Taylor estimated the total loss at $6,500 to 1 $6,700. Margaret Cheeks, a night stocker at the Kmart store burglarized on December 2 31, 2006, testified that she was familiar w ith the merchandise and described that at 3 least two glass jewelry cases had been broken where over $500 worth of jewelry was 4 kept, and after viewing the security video, she identified the jewelry from those cases 5 being removed from the store in a “very expensive” shopping cart. Cheeks also 6 testified about the security video show ing the burglars moving $2,000 to $3,000 worth 7 of video games and players. Michael Verb le, who was the operati ons manager at the 8 Circuit City burglarized on January 7, 2007, testifie d that “some laptops” were 9 missing following that burglary and estimatedthe loss at “[$5,000] to $10,000, closer 10 to . . . [$]10,000.” James Huron, store manager at the Toys R Us burglarized on 11 January 14, 2007, testified th at various PlayStation video games and game systems 12 were taken, valued at $10,263.11. 13 Larceny also requires proof of intent to permanently deprive the owner of the 14 property taken. State v. Puga , 85 N.M. 204, 206, 510 P.2d 1075, 1077 (Ct. App. 15 1973); see UJI 14-1601. “Intent is subjective and is almost always inferred from 16 other facts in the case. It is rare ly established by direct evidence.” State v. Frank , 92 17 N.M. 456, 458, 589 P.2d 1047, 1049 ( 1979). The totality of the circumstances of the 18 four burglaries, which included breaking into the buildings during predawn hours and 196 smashing display cases, suggests intent to permanently deprive the owners of the 1 property taken. Trial tes timony also provided evidence that Defendant took the items 2 with the intent to permanently deprive th e owners of them. When questioned about 3 events leading up to the December 28, 2006, burglary of the Hastings store, Mark 4 Kibler testified that he and others had been “hanging out, having drinks” at Droll’s 5 apartment when Defendant or Droll suggested that they could “go make money” or 6 “need[ed] to make money.” Kibler belie ved the items taken in the burglary were 7 going to be sold. 8 Droll and Kibler were extensively cross-examined concerning the plea 9 agreements they had reached w ith the State for their partic ipation in the burglaries and 10 their resulting motives for cooperating withthe State in prosecuting Defendant. “It 11 is the role of the factfinder to judge th e credibility of witnesses and determine the 12 weight of evidence.” State v. Hughey , 2007-NMSC-036, ¶ 16, 142 N.M. 83, 163 P.3d 13 470. The credibility of their testimony was a question for the jury. 14 Given the evidence presented about Defendant’s involvement in the commercial 15 burglaries and related larcenies, we c onclude that sufficient evidence supported 16 Defendant’s convictions for the commercial burglaries and the related larcenies. 17 Conspiracy to Commi t Commercial Burglary 187 “Conspiracy consists of knowingly comb ining with another for the purpose of 1 committing a felony within or without this state.” NMSA 1978, § 30-28-2(A) (1979). 2 “The crime of conspiracy is rarely susceptible of proof by direct evidence. 3 Nevertheless, it can be establis hed by circumstantial evidence.” State v. Deaton , 74 4 N.M. 87, 89, 390 P.2d 966, 967 (1964). “Whilecommon design is the essence of a 5 conspiracy, this fact may be established by evidence other than that the parties came 6 together and actually agreed upon a met hod of operation for the accomplishment of 7 the offense.” Id. at 89, 390 P.2d at 967-68. “A mutually implied understanding is 8 sufficient so far as combination or confed eracy is concerned, and the agreement is 9 generally a matter of inference deduced fro m the facts and circ umstances[] and from 10 the acts of the person accused done in pursu ance of an apparent criminal purpose.” 11 Id. at 90, 390 P.2d at 968. 12 The four counts of conspiracy to commit commercial burglary corresponded to 13 the dates and locations of the four commerc ial burglaries discussed earlier. To find 14 Defendant guilty of each count, the jury wa s instructed that the State must prove: 15 1. . . . [D]efendant and another person by words or acts agreed 16 together to commit [c]ommercial [b]urglary; 17 2. . . . [D]efendant and the other person intended to commit 18 [c]ommercial [b]urglary[.] 19 SeeUJI 14-2810 NMRA; § 30-28-2(A). 208 It is reasonable to infer from the circ umstances that Defendant’s presence with 1 other persons in stores they had broken into during non-business hours was the result 2 of an agreement to commit commercial burglary. There was also more specific 3 evidence of conspiracies. Reg arding the Hastings store burglary, Kibler testified that 4 he, Droll, Nicholas J., and Defendant had been at Droll’s apartment when Defendant 5 or Droll suggested that they could “ go make money,” which Kibler understood to 6 mean “something illegal.” Regarding the Toys R Us burglary, Droll testified that she 7 had served as the driver while Defendant, Kibler, and at least oneother person entered 8 the store after Defendant broke the front window. Droll also testified as to the 9 presence of Defendant, Kibler, Nicholas J., and two others at the Kmart burglary, as 10 well as the presence of Defendant and Nicholas J. at the Circuit City burglary. Based 11 on the evidence presented, we concludethat sufficient evidence existed for 12 Defendant’s four convictions for cons piracy to commit commercial burglary. 13 Contributing to the Delinquency of a Minor 14 Defendant was convicted of three count s of contributing to the delinquency of 15 a minor, Nicholas J., in connection with the burglaries and/or larcenies of the Hastings 16 store on or about December 28, 2006, the Kmart store on or about December 31, 2006, 17 and the Circuit City store on or aboutJanuary 7, 2007. “Contributing to the 18 delinquency of a minor consists of any person committing any act or omitting the 199 performance of any duty, which act or omissi on causes or tends to cause or encourage 1 the delinquency of any pers on under the age of eighteen years.” NMSA 1978, § 30-6- 2 3 (1990). “The jury can convict for [contributing to the delinquency of a minor] if the 3 defendant’s act actually caused or encour aged the particular minor to commit a 4 delinquent act or if the act only tends to cause or encourage delinquency generally. 5 The ‘tends to cause or encourage’ languagerefers to an objec tive view of [the] 6 defendant’s conduct.” State v. Trevino , 116 N.M. 528, 534, 865 P.2d 1172, 1178 7 (1993). 8 To find Defendant guilty of contributing to the delinquency of a minor, the jury 9 was instructed that Nicholas J. was under the age of eighteen and that the State must 10
prove: 11 1. . . . [D]efendant conspired with Nicholas [J.] to commit the 12 offense of [c]ommercial [b]urglary and/or [l]arceny; 13 2. This caused or encouraged Nicholas [J.] to commit the 14 offense of [c]ommercial [b]urglary and/or [l]arceny[.] 15 SeeUJI 14-601 NMRA. 16 No issue exists with regard to Nicholas J.’s age. Nicholas J. testified that he 17 had entered a plea in children’ s court to the burglaries of Hastings and Circuit City. 18 He also acknowledged that he had previously given a statement admitting to the 19 Kmart burglary. Droll testified that Nichol as J. was present at these three burglaries. 2010 As discussed earlier in this opinion, Dro ll had also testified as to Defendant’s 1 involvement in these three burglaries. From the evidence presen ted during trial, we 2 conclude that sufficient evidence supporte d findings that Defendant engaged in 3 conduct sufficient to “[tend] to cause or encourage” Nicholas J. to commit the 4 burglaries and larcenies. See§ 30-6-3. 5 Failure to Define “Market Value” 6 Defendant argues that the district court erred in failing to de fine “market value” 7 as that phrase was used in the jury instru ctions for larceny. He acknowledges that he 8 did not object to this omission at trial and thus did not preserve the issue. “The 9 standard of review we apply to jury in structions depends on whether the issue has 10 been preserved. If the error has been pres erved[,] we review the instructions for 11 reversible error. If not, we re view for fundamental error.” State v. Benally , 12 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P. 3d 1134 (citation omitted). “Error that 13 is fundamental must be such error as goe s to the foundation or basis of a defendant’s 14 rights or must go to the foundation of th e case or take from the defendant a right 15 which was essential to his defense and which no court c ould or ought to permit him 16 to waive.” Cunningham , 2000-NMSC-009, ¶ 13 (internal quotation marks and 17 citation omitted). “Fundamental error only applies in exceptional circumstances when 18 guilt is so doubtful that it would shock the j udicial conscience to allow the conviction 1911 to stand.” State v. Baca , 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, 1 overruled on other grounds by State v. Belanger , 2009-NMSC-025, 146 N.M. 357, 2 210 P.3d 783. In the context of fundament al error review of errors in jury 3 instructions, we first “determine whether a reasonable juror woul d have been confused 4 or misdirected by the jury instruction.” Cunningham , 2000-NMSC-009, ¶ 14 (internal 5 quotation marks and citation omitted). 6 The jury was instructed that the State must proveDefendant “took and carried 7 away various items belonging to [name of business] or another, which had a market 8 value over [dollar amount.]” The instructi on tracked UJI 14-1601. One of the use 9 notes for this uniform jury instruction states, “ SeeUJI 14-1602 [NMRA] for definition 10 of market value.” UJI 14-1602 states, “‘Market value’ means the price at which the 11 property could ordinarily be bought or sold at the time of the alleged [criminal act].” 12 One of the use notes for UJI 14-1602 states, “Foruse if market value is in issue. This 13 instruction should be given immediately after UJI 14-1601[.]” 14 The State argues that market value was not in issue in Defendant’s case because 15 he did not present any evidence contradi cting the evidence introduced by the State. 16 While we agree with the State th at the district court’s failureto instruct the jury as to 17 the definition of “market value” does not riseto the level of fundamental error, we 18 disagree with the assertion that market valu e was not in issue. The State was required 1912 to prove the market value of the property in order to establish the level of the offenses 1 as third degree felonies (Counts 6 and 22) or fourth degree felonies (Counts 10 and 2 18). Market value was in issue, and UJI 14-1602 should have been given. 3 In the absence of the definition of “m arket value” as set forth in UJI 14-1602, 4 the jurors of necessity had to determine the meaning of this phrase for themselves. 5 Where the property in question is new merc handise stolen from a retail store, some 6 of it with price tags still attached, the evidence of selling price as introduced at trial 7 constituted evidence of “the price at whic h the property could ordinarily be bought or 8 sold[.]” Id. We have little doubt that the jury, presented with this evidence, would 9 have concluded on its own that these amount s represented the “market value” of the 10 items. See, e.g. , City of Albuquerque v. Martinez , 93 N.M. 704, 705, 604 P.2d 842, 11 843 (Ct. App. 1979) (holding that uncontradicted testimony in a shoplifting case 12 regarding an item with a price tag is su fficient circumstantial evidence of value); cf. 13 State v. Contreras , 1996-NMCA-045, ¶¶ 4-5, 8, 121 N.M. 550, 915 P.2d 306 14 (reversing felony shoplifting conviction where price tag evidence was contradicted 15 by testimony that jewelry was ne ver sold at ticketed price). 16 In these circumstances, where ther e was substantial and uncontradicted 17 evidence of the selling prices of the items st olen, where there is no indication that the 18 jury’s understanding of the phrase “market value” differed from that set forth in UJI 1913 14-1602, and where none of the testimony of the value of the property stolen 1 suggested that the value was close to the lower end of the dollar value range for the 2 particular offense, we dec line to conclude that Defendant’s “guilt is so doubtful that 3 it would shock the judicial conscience to allow the conviction[s] to stand.” Baca , 4 1997-NMSC-045, ¶ 41. We therefore re ject Defendant’s fundamental error 5 contention. 6 Correction of Judgment 7 We note an inconsistency between the de scription of the charges in Counts 8, 8 12, and 20, for which Defendant was found guilty according to the verdict forms, and 9 the descriptions of those three counts as stated in th e district court’s judgment, 10 partially suspended sentence and commitment. The verdict forms describe the charges 11 in the three counts as conspiracy to co mmit commercial burglary, while the judgment 12 describes them as contributing to the de linquency of a minor. The judgment appears 13 to be incorrect in this regard, and weremand for entry of a corrected judgment. 14 CONCLUSION 15 We affirm Defendant’s convictions and remand for correction of the judgment, 16 partially suspended sentence and commitment. 1714 IT IS SO ORDERED. 1

__________________________________ 2 JONATHAN B. SUTIN, Judge 3

WE CONCUR: 4

_________________________________ 5 RODERICK T. KENNEDY, Judge 6

_________________________________ 7 LINDA M. VANZI, Judge 8