This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. 36,287 4
FREDDIE MIRABAL, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Alisa A. Hadfield, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Kathleen T. Baldridge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 GARCIA, Judge. 172 {1} Defendant appeals from the district court’s judgment and sentence, entered after 1 a jury trial, convicting him for conspi racy to commit non-residential burglary. 2 Unpersuaded that Defendant’s docketing statement established error, we issued a 3 notice of proposed summary disposition, proposing to affirm. Defendant has filed a 4 memorandum in opposition to our notice. Having considered Defendant’s response, 5 we remain unpersuaded, and affirm. 6
{2} On appeal, Defendant challenges the suffi ciency of the evidence to support his 7 conviction for conspiracy to commit non-resi dential burglary. We do not reiterate the 8 full analysis set forth in our notice; we respond only to the specific assertions made 9 in Defendant’s memorandum in opposition. Defendant’s response repeatedly claims 10 that there was no evidence thathe knew the generator in hi s truck had been stolen or 11 how it was stolen, and there was no eviden ce that he had an agreement with Mr. 12 Milligan to take the generator. [MIO 1, 2-3, 6] We also understand Defendant’s 13 response to clarify that he told detectives that he drove Mr. Milligan to Mr. Milligan’s 14 apartment at the Rio Volcan Apartment Comp lex to retrieve somebelongings and did 15 not participate at all in taking any city-owned property. [MIO 2] 16
{3} We note that there was no evidence presented that would support Defendant’s 17 claim that he drove Mr. Milligan to his apartment to retrieve Mr. Milligan’s 18 belongings. In fact, the State’s witness list i ndicates that it at least intended to call the 193 maintenance supervisor and apartment manager of the Rio Volcan Apartment 1 Complex, where the generator was stolenand where Mr. Milligan claimed to have 2 resided. [RP 44] We presume the State’s witnesses did not support Defendant’s claim 3 that he was at Mr. Milligan’s apartment to retrieve Mr. Milligan’s belongings. [RP 44] 4 It appears to us that Defendant has not supplied this Court with a complete 5 understanding of the State’s evidence presented at trial. See State v. Talley , 1985- 6 NMCA-058, ¶ 23, 103 N.M. 33, 702 P.2d 353 (observing that the docketing statement 7 is intended to serve as a fair substitutefor the complete record on the summary 8 calendar); Thornton v. Gamble , 1984-NMCA-093, ¶ 18, 101 N.M. 764, 688 P.2d 1268 9 (explaining that we construe the appellaterule governing the content of docketing 10 statements to include the requirement thatthe appellant provide all the facts that 11 support affirmance); State v. Chamberlain , 1989-NMCA-082, ¶ 11, 109 N.M. 173, 12 783 P.2d 483 (stating that where an appellant fails in th e obligation under Rule 12-208 13 NMRA to provide us with a summary of all the facts material to consideration of the 14 issue raised on appeal, we cannot grant relief on the ground asserted). 15
{4} While we recognize that the jury is free to reject Defendant’s version of events 16 and that its disbelief thereof cannot substitutefor affirmative proof of the State’s case, 17 see State v. Wynn , 2001-NMCA-020, ¶ 6, 130 N.M. 381, 24 P.3d 816, we believe the 18 State presented sufficient circumstantial evidence from which the jury could 194 reasonably infer the existence of a conspiracy. See State v. Estrada , 2016-NMCA-066, 1 ¶ 39, 377 P.3d 476 (noting “that conspiraci es may be (and often are) proven with 2 circumstantial evidence”). The State presented evidence thatthe city-owned generator 3 had a tracking device installed on it and th at it had activated around 3:04 a.m. by a 4 triggering event. [DS 1; MIO 1] The docketing statement indicated that the State 5 presented evidence that APD officers were dispatched to the maintenance storeroom 6 where the generator was supposed to be and found the door to the storeroom ajar and 7 left unlocked, and the generator was missing. [DS 1] The docketing statement also 8 indicated that, at the same time that the Albuquerque Police Department (APD) 9 officers were dispatched, detectives weremonitoring and following the signal of the 10 tracking device on the generator. [DS 2] The detectives tracked the generator’s signal 11 to an area, in which one of the detectives located the generator’s tracking device in a 12 green Dodge pickup truck that was beginning to park on the side of the road. [DS 2] 13 The detective discovered thatthe green Dodge pickup truc k was driven by Defendant, 14 who had parked the pickup by his home, and began walking into his home with his 15 passenger, Mr. Milligan. [DS 2; MIO 1] Th e detective saw the missing generator in 16 plain view in the bed of the pickup. [DS 2; MIO 2] Detectives performed a search of 17 the pickup, pursuant to a warrant, and f ound a large dolly with yellow cargo straps, 18 air conditioning gauges, and a soldering kit in a black case, all in the bed of the pickup 195 truck. [DS 2; MIO 2] Inside the cab of th e pickup, detectives f ound a lock-pick set and 1 a set of bolt cutters on the floorboard of the passenger seat. [DS 2; MIO 2] The 2 detectives searched Defendant and Mr. Milligan incident to their arrests and found 3 jiggle keys (used for lock-picking), sandpaper, and a small container of oil on Mr. 4 Milligan. [MIO 2] Defendant told the det ectives that he was only giving Mr. Milligan 5 a ride to his apartment to retrieve some of his belongings at the Rio Volcan Apartment 6 Complex. [MIO 2] 7
{5} The time line described in the docketing statement, which is not disavowed by 8 the memorandum in opposition, refutes Defe ndant’s claims that he had no idea how 9 the generator was stolen and did not agree to participate in it. In light of the activation 10 of the tracking device, the de tectives tracing the signal of the tracking device, and the 11 discovery of the evidence of all the burgl ary tools found in De fendant’s pickup with 12 the generator itself, the Stat e’s evidence indicated that th e generator was stolen from 13 the maintenance storeroom at the Rio Volcan Apartment Complex and was then 14 placed in Defendant’s pickup. [DS 1-2] Th e evidence provides no indication that the 15 generator may have been taken from Mr. Milligan’s apartment when Defendant went 16 to the apartment complex to help move the generator in Defe ndant’s pickup truck. 17 Based on the time line of the tracking devi ce’s activation and the discovery of the 18 generator, the other city-owned property, and the burglary tools found in Defendant’s 196 truck, the jury could reasonably infer thatDefendant was present when the generator 1 was taken from the maintenance storeroom and acted at least as the “get-away” driver. 2 From the sheer number and larg e size of items taken and the burglary tools required 3 to take and move the property, the jury could reasonably infe r that planning and 4 assistance was needed and that Defendant agreed and worked in concert with Mr. 5 Milligan with an intent to moveand/or remove the property. Cf. State v. Gonzales , 6 2008-NMCA-146, ¶ 11, 145 N.M. 110, 194 P.3d 725 (holding that the evidence that 7 the defendant and several other unknown people were working in concert to burglarize 8 a structure “presented strong circumstan tial evidence to support its conclusion that 9 [the d]efendant had, in fact, agreed w ith at least one of them to commit the 10 burglaries”). Based on the location of the generator in a maintenance storeroom, the 11 presence of numerous burglary tools, and the hour of 3:04 a.m. when Defendant 12 assisted Mr. Milligan, the jury could reas onably infer that Defendant knew they were 13 taking and moving property that did not belong to Mr. Milligan or Defendant. See 14 State v. Gallegos , 2011-NMSC-027, ¶ 45, 149 N.M. 704, 254 P.3d 655 15 (acknowledging that, due to the typically clande stine nature of conspiracies, the state’s 16 proof of a conspiracy is seldom direct ev idence of the agreemen t, and the jury must 17 “infer the existence of an agreemen t based on the defe ndant’s conduct and 18 surrounding circumstances”). We reject Defendant’s claim that jury relied on 197 improper inferences, surmise, or a cynical speculation to fill in gaps of the State’s 1 proof. [MIO 4] 2
{6} Based on the all the circumstantial evid ence and the reasonable inferences the 3 jury could draw from that ev idence, we are persuaded that the State met its burden of 4 establishing the existence of a conspiracy to commit burglary as it was defined for the 5 jury. [RP 93] See NMSA, § 30-28-2(A) (1979); UJI 14-2810 NMRA. For the reasons 6 stated above and in our notice, we affirmthe district court’s judgment and sentence 7
{7} IT IS SO ORDERED. 8

__________________ ______________ 9 TIMOTHY L. GARCIA, Judge 10 WE CONCUR: 11

_______________________________ 12 M. MONICA ZAMORA, Judge 13

_______________________________ 14 HENRY M. BOHNHOFF, Judge 15