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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 35,924

5 FRANCES G. OCHOA,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

8 Angie K. Schneider, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 

13 Kathleen T. Baldridge, Assistant Appellate Defender

14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 GARCIA, Judge.

18 {1} Defendant appeals her convictions for shoplifting (over $500) and conspiracy
2

1 to shoplift. We issued a calendar notice proposing to affirm. Defendant has responded

2 with a memorandum in opposition. Not persuaded that our calendar notice was

3 incorrect, we affirm the district court judgment and sentence.

4 {2} Defendant continues to challenges the sufficiency of the evidence to support her

5 convictions for shoplifting (over $500) and conspiracy to shoplift (over $500). A

6 sufficiency of the evidence review involves a two-step process. Initially, the evidence

7 is viewed in the light most favorable to the verdict. Then the appellate court must

8 make a legal determination of “whether the evidence viewed in this manner could

9 justify a finding by any rational trier of fact that each element of the crime charged has

10 been established beyond a reasonable doubt.” State v. Apodaca, 1994-NMSC-121,

11 ¶ 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and citations omitted).

12 {3} In order to convict Defendant of these two offenses, the evidence had to show

13 that Defendant took merchandise valued over $500 without intending to pay for it, and

14 acted in concert with another individual who also agreed to participate in the

15 shoplifting. [RP 116, 118] Here, the State presented evidence through the testimony

16 of a witness and a video that indicated Defendant and a man went through a self17 checkout together, and Defendant placed some of the items in the bag without them

18 being scanned by herself or the other individual. [MIO 1; DS 3] Among the items that

19 was not scanned was an expensive baby monitor. [MIO 1; DS 3] Defendant admitted
3

1 her plan to take some of the items, but she denied an intent to take the baby monitor.

2 [MIO 2; DS 3] The jury, sitting as fact-finder, was free to reject Defendant’s claim

3 that she did not intend to steal the baby monitor. [MIO 5] See State v. Sutphin, 1988-

4 NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that the fact-finder is free to

5 reject a defendant’s version of events). The jury could also reasonably infer that

6 Defendant and the other individual conspired to go through the self-check out lane

7 without paying for some of the items. See State v. Gallegos, 2011-NMSC-027, ¶ 45,

8 149 N.M. 704, 254 P.3d 655 (noting that conspiracy is a clandestine crime, and a jury

9 may infer the existence of an agreement based on conduct and the surrounding

10 circumstances). 

11 {4} For the reasons set forth above, we affirm.

12 {5} IT IS SO ORDERED.

13 ________________________________

14 TIMOTHY L. GARCIA, Judge

15 WE CONCUR:

16 _______________________________

17 J. MILES HANISEE, Judge

18 _______________________________

19 JULIE J. VARGAS, Judge