IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 26,570 4 STEPHEN BLEA, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Richard J. Knowles, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Max Shepherd, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Hugh W. Dangler, Chief Public Defender 14 Vicki W. Zelle, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 FRY, Chief Judge. 19 Defendant appeals his conviction fo r larceny (over $250). On appeal, 20 Defendant argues that (1) there was insufficient evidence to support his conviction 212 under a theory of accomplice liability, and (2 ) the district court improperly excluded 1 documentary evidence related to his military status. We are unpersuaded by 2 Defendant’s arguments and therefore affirm. 3 SUFFICIENCY OF THE EVIDENCE 4 We review the evidence to determine “w hether substantial evidence of either 5 a direct or circumstantial nature exis ts to support a verdict of guilt beyond a 6 reasonable doubt with respect to every element essential to a conviction.” State v. 7 Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 ( 1988). Under this standard, we 8 view the evidence in the light most favorab le to support the guilty verdict, and indulge 9 all reasonable inferences and resolve all conflicts in the evidence in favor of upholding 10 the verdict. State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 11 176. We do not reweigh the evidence or subs titute our judgment for that of the fact12 finder so long as there is sufficient evidence to support the verdict. Sutphin , 107 N.M. 13 at 131, 753 P.2d at 1319. 14 To convict Defendant for larceny (over $250), the State was required to prove 15 beyond a reasonable doubt that Defendant took and carried away a television, a JVC 16 receiver, an AC adaptor, a bass speaker , and a monster cable belonging to another, 17 with a market value over $250; that at the time he took this property, Defendant 183 intended to permanently deprive the owner of it; and that this happened on or about 1 February 21, 2004. SeeNMSA 1978, § 30-16-1 (1987) (amended 2006). To convict 2 Defendant, even if he did not directly perform the acts constituting larceny under a 3 theory of accomplice liability, the State was required to prove beyond a reasonable 4 doubt that Defendant intended that the crime be committed; that the crime was 5 committed; and that Defendant helped, encouraged or caused the crime to be 6 committed. SeeNMSA 1978, § 30-1-13 (1972) (defining the theory of accessory 7 liability); State v. Carrasco , 1997-NMSC-047, ¶ 6, 124 N.M. 64, 946 P.2d 1075 8 (recognizing that a defendant who aids or abets in the commission of a crime is 9 equally culpable as the principal). 10 Defendant does not contest that his cousin Michael Blea took items from 11 Victim’s residence with the intent to permanently deprive Victim of such items and 12 that the items had a value over $250. Instead, Defendant argues th at the evidence was 13 insufficient to show that his own “presen ce at the scene of th e home invasion [made] 14 him a party to the burglary.” We agree th at “[n]either presence, nor presence with 15 mental approbation is sufficient to sustain a conviction as an aider or abettor,” and that 16 “[p]resence must be accompanied by some outward manifestation or expression of 17 approval.” State v. Phillips , 83 N.M. 5, 7, 487 P.2d 915, 917 (Ct. App. 1971); see 184 State v. Duran , 86 N.M. 594, 595, 526 P.2d 188, 189 (Ct. App. 1974) (holding that 1 an aider and abettor must share the criminalintent of the principal and there must be 2 a community of purpose or partnership in the unlawful undertaking). But, as 3 discussed below, the facts and circumstances surrounding Defendant’s presence and 4 conduct support a finding that his role exceeded that of mere “propinquity to his 5 cousin,” as characterized by Defendant. See Phillips , 83 N.M. at 7, 487 P.2d at 917 6 (recognizing that evidence of aiding and abetting may be accomplished “by acts, 7 conduct, words, signs, or by any means suffi cient to incite, enc ourage or instigate 8 commission of the offense or calculated to make known that commission of an offense 9 already undertaken has the aider’s support or approval” (internal quotation marks and 10 citations omitted)). 11 Evidence was presented that Defendant drove his cousin to Victim’s apartment 12 after leaving a bar at 2:00 a.m., backed hi s truck into a nearby parking space, and sat 13 outside his truck smoking a cigarette while his cousin took items from Victim’s 14 apartment and loaded them into the truck. Victim testified that she was alone in the 15 apartment when she was awakened by knocking on her door at 3:00 in the morning. 16 Victim testified that when she opened the door a little bit, the cousin put his foot in the 17 door, forced his way in, and knocked her down. After the cousin prevented her from 185 calling the police, Victim testified that sh e was able to run out of the house to seek 1 help. Victim testified that she screamed, “Call the cops[,] [c]all the cops” as she ran 2 by a man she subsequently identified as Defendant, who stood by his truck with its 3 tailgate down and simply looked at her an d did nothing. During the time she was 4 running and seeking help, Victim testified that the cousin was chasing and verbally 5 threatening her, as well as loading itemstaken from her apartment into Defendant’s 6 truck. 7 A passing motorist testified that Victim flagged him down for help and that he 8 saw Defendant’s truck backed into the parking lo t. The motorist testified that he later 9 saw the truck leaving the s cene of the crime. Based on information provided by the 10 motorist, an officer subsequently stopped the truck occupied by Defendant and his 11 cousin. Items taken from Victim’s residen ce were in the bed of Defendant’s truck. 12 We conclude that the foregoing eviden ce supports a reasonable inference that 13 Defendant was not merely present, but that he also “helped, encouraged or caused the 14 crime to be committed.” See§ 30-1-13 (accessory liability). In this regard, a jury 15 could reasonably conclude th at Defendant facilitated the larceny by taking his cousin 16 to his criminal venture, serving as a lookout , enabling his cousin to load the items in 17 the truck by backing into the parking lot and opening the tailgate, and then 186 transporting the stolen items in his truck. See State v. Bankert , 117 N.M. 614, 619-20, 1 875 P.2d 370, 375-76 (1994) (holding that th e defendant’s actions, which included 2 being the transporter of the drugs by way of his personal vehicle, sufficiently 3 demonstrated accomplice status); State v. Padilla , 118 N.M. 189, 192-93, 879 P.2d 4 1208, 1211-12 (Ct. App. 1994) (holding that the defendant’s act of driving the 5 getaway car quickly from robbery scene s upported conviction for aiding and abetting 6 a robbery). 7 We note that even if the jury believed that Defendant’s initial involvement was 8 innocent, the jury could reasonably assess th at when Victim ran by screaming for help, 9 Defendant then knew that a crime was taking place. Because Defendant did nothing 10 and allowed his cousin to load and transport the items in his truck, the jury could 11 reasonably conclude that Defendant supported the crime’s commission. See 12 Carrasco , 1997-NMSC-047, ¶ 7 (holding that an accessory’s intent can be inferred 13 from behavior which informs the principal that the accessory approves of the crime 14 after the crime has been undertaken). 15 In an effort to minimize the evidence of his involvement, Defendant focuses on 16 the circumstances presented inPhillips , a case which Defendant argues stands in 17 contrast to what he believes to be weak evidence of accessory liability in this case. 187 While the facts in this case differ from those in Phillips , in both cases the 1 circumstantial evidence for accessory liability shows a community of purpose or 2 partnership in the unlawful undertaking. In Phillips , the jury reasonably rejected the 3 defendant’s version th at he was asleep in the car and a mere passenger based on 4 circumstantial evidence that the defendant changed positions in the car to make room 5 for the stolen property and helped reload the stolen property when it fell from the car. 6 83 N.M. at 7, 487 P.2d at 917. In the present case, the jury reasonably rejected 7 Defendant’s assertion that he was an innocent bystander based on circumstantial 8 evidence that Defendant provided the means of transportation, served as a lookout, 9 positioned his truck to help his cousin lo ad the items, and approved of the crime 10 during its commission when he did nothing to help Victim. 11 Despite the foregoing, Defendant maintains that he was misled by his cousin 12 and had no idea that his cousin was unlawfu lly taking Victim’s property. According 13 to Defendant, he was driving his cousin home after a night out when his cousin asked 14 him to take a detour to Victim’s apartment so that he could collect some money that 15 he was owed. Defendant tes tified that when his cousin came out of the apartment with 16 a receiver, rather than money, his cousin told him that Vi ctim’s son did not have the 17 money owed and allowed him totake the items instead. Consistent with Defendant’s 188 story was his cousin’s trial testimony that hetold Defendant thathe was collecting a 1 debt from Victim’s son and that De fendant did not know what was going on. 2 Although Defendant asserts that he wa s wrongfully convicted for a felony 3 simply because he believed his cousin, it was the jury’s prerogative to assess that 4 neither Defendant nor his cousin were credib le and thus to disbe lieve their version of 5 the events. See State v. Gonzales , 1997-NMSC-050, ¶ 18, 124 N.M. 171, 947 P.2d 6 128 (holding that it is the fact-finder’s prerogative to weigh the evidence and to judge 7 the credibility of the witnesse s). In this regard, we recognize that Defendant denies 8 that the tailgate to his truck was down, and that he saw Victim as she ran by screaming 9 for help. We recognize also Defendant’s view that Victim’s testimony was ambiguous 10 and unclear, and that his cousin “made it cl ear that [Defendant] had no idea what was 11 going on.” Again, however, it was the jury ’s prerogative to disbelieve Defendant’s 12 and his cousin’s version of the facts. See Carrasco , 1997-NMSC-047, ¶ 7 (observing 13 that an accessory’s intent may be estab lished by inference from the surrounding facts 14 and circumstances). And given that the c ousin’s credibility was called into question 15 when his trial testimony was contradicted by Victim’s testimony and by the interview 16 he gave to the prosecutor th e day before trial, there were ample grounds for the jury 17 to reject the defense’s self-s erving claims of innocence. See State v. Huff , 1998- 189 NMCA-075, ¶ 11, 125 N.M. 254, 960 P.2d 342 (holding that, although the defendant 1 offered conflicting testimony, the jury is entitled to disregard the defendant’s version 2 of the facts). 3 We also reject Defendant’s argument that the evidence is not incompatible with 4 any rational theory of innocence. Although the jury conceivably could have believed 5 Defendant’s version that he had no idea what was going on and that he was simply 6 and unfortunately present during the crime, its verdict shows that it did not. See State 7 v. Garcia , 2005-NMSC-017, ¶¶ 18-20, 138 N.M. 1, 116 P.3d 72 (expressly 8 disavowing the proposition that substantial evidence in support of a conviction must 9 be inconsistent with any reasonable hypothesis of innocence); State v. Montoya , 2005- 10 NMCA-078, ¶ 3, 137 N.M. 713, 114 P.3d 393 (holding that the jury’s verdict of guilty 11 means that the jury has necessarily found the hypothesis of guilt more reasonable than 12 the hypothesis of innocence). 13 EVIDENTIARY RULING 14 We next address whether the district court erred in denyi ng Defendant’s request 15 to admit his enlistment papers for the Navy’s deferred enlistment program. We review 16 the district court’s evidentiary ruling pursuant to an abuse of discretion standard and 1710 will not reverse in the abse nce of a clear abuse. See State v. Sarracino , 1998-NMSC1 022, ¶ 20, 125 N.M. 511, 964 P.2d 72. 2 We begin our analysis by addressing the context in which Defendant sought 3 admission of his deferred enlistment papers. On direct examination, Defendant 4 testified that he was an “E2 in the United States Navy” and that he had been involved 5 with the Navy for almost two years. Duri ng the State’s subsequent cross-examination 6 of Defendant, the following exchange took place: 7 State: And, in fact, at the time that this happened, you had enlisted 8 in the Navy; is that correct , but you were not in the Navy? 9 Defendant: I was in hydraulics. 10 State: But you were not serving in the Navy? 11 Defendant: I was in the Navy, that program. 12 State: You had enlisted but you were not serving yet? 13 Defendant: I was enlisted, under oath . I hadn’t gone to boot camp yet. 14 State: And as of right now you are not in the Navy? 15 Defendant: I am not. I am in the department program. I’m not active 16 duty. 17 State: You are not in the Navy? 18 Defendant: I am in the Navy. 1911 State: You are? Are you getting paid by the Navy? 1 Defendant: I’m not getting paid yet. 2 State: You are working, just — 3 Defendant: I go to meetings every third Thursday of the month on San 4 Mateo and Montgomery at the Navy recruiting station. 5 Following this exchange, Defendant s ought to introduce his papers for the 6 deferred enlistment program, arguing that the State “opened the door, as far as saying 7 [Defendant] wasn’t in the Navy.” Indenying Defendant’s request, the judge 8 appropriately ruled that the State was entitled on cross-examination to clarify 9 Defendant’s naval status as inactive duty, given Defendant’s testimony that he was “in 10 the Navy.” See State v. Balderama , 2004-NMSC-008, ¶ 40, 135 N.M. 329, 88 P.3d 11 845 (recognizing that the state has the opportunity through cross-examination to 12 clarify any confusion that may result from a witness’s direct testimony). Defendant 13 nonetheless advocates that admission of th e documentary evidence of his deferred 14 enlistment was “vital” to his defense. In this regard, Defendant argues that because 15 he was charged with larceny, a crime of dishonesty, he should have been allowed to 16 introduce the papers pursuant to Rule 11-404(A)(1) NMRA, which permits admission 17 of “evidence of a pertinent trait of character offered by an accused.” This particular 18 argument was not raised below and therefore is not preserved for appeal. See State 1912 v. Martinez , 2008-NMCA-052, ¶ 10, 143 N.M. 773, 182 P.3d 154 (holding that to 1 preserve an issue for appeal, the appellant must invoke a ru ling of the district court on 2 the same grounds argued on appeal), cert. quashed, 2008-NMCERT-011, 145 N.M. 3 532, 202 P.3d 125. In any event, the State never attacked Defendant’s use of his 4 Naval service as indicative of his character for honesty but rather only questioned 5 whether Defendant accurately ch aracterized his Naval status. 6 That said, we agree with the district court’s ruling that the proffered evidence 7 did not have any significant bearing on or add anything to the case. Introduction of 8 the enlistment papers for the deferred progr am would have been merely cumulative 9 of Defendant’s testimony on cross-examinati on that he had enlisted but was not yet 10 in active duty, irrespective of any inference that the jury could make regarding 11 whether Defendant was trying to bolster his credibility by his Naval affiliation. See 12 Rule 11-403 NMRA (providing that “[a]lthough relevant, evidence may be excluded 13 if its probative value is substantially outwe ighed by . . . consider ations of undue delay, 14 waste of time or needless presentation of cumulative evidence”); State v. Marquez , 15 1998-NMCA-010, ¶ 24, 124 N.M. 409, 951 P.2d 1070 (filed 1997) (recognizing that 16 the trial court’s refusal to admit cumulativ e testimony is not an abuse of discretion). 17 CONCLUSION 1813 Based on the foregoing discussion, we affirm. 1 IT IS SO ORDERED. 2

3 CYNTHIA A. FRY, Chief Judge 4 WE CONCUR: 5

6 JAMES J. WECHSLER, Judge 7

8 MICHAEL D. BUSTAMANTE, Judge 9