This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 28,791 9 CHRISTINE PENMAN, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Thomas J. Hynes, 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 Chief Public Defender 19 Adrianne R. Turner, Assistant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22

MEMORANDUM OPINION 23 BUSTAMANTE, Judge. 242 Christine Penman (Defendant) appeal s her conviction of embezzlement under 1 NMSA 1978, Section 30-16-8 (2007). Defe ndant raises issues regarding the 2 sufficiency of the evidence, the dismissal of a juror prior to voir dire, and the failure 3 of the State to disclose the existence of a recording of a police interview with 4 Defendant. We reverse base d on our conclusion that the evidence was insufficient to 5 support the conviction. As a result, we do not address Defendant’s arguments 6 regarding the juror and the recording. 7 I. BACKGROUND 8 The State presented two witnesses: Offi cer David Karst, who investigated the 9 incident, and Ms. Virginia Dearth, w ho manages the store at issue and was 10 Defendant’s boss. Ms. Dearth explained the store’s protocol for handling money. 11 During the day, cashiers depos it money in a safe drop wh enever their drawers exceed 12 $100. When it is time to deposit money, the cashier places it in a bag, records the 13 amount in a “drop log,” and puts the bag in a slot in the drop safe. Only the manager 14 (Ms. Dearth) and the assistant manager (Def endant, at the time of the incident) have 15 access to the safe. At the beginning of eachday, the manager on duty performs the 16 daily deposit. First, all of the cash, check s, and money orders from the previous day 17 are removed from the drop safe. Ms. Dearth testified that the manager then counts this 18 money and enters the result into a computer. 192 Officer Karst explained a slightly different procedure. Karst testified that 1 Defendant indicated to him that the manager enters into the computer an amount for 2 each item in the safe and that the computercalculates the total. The manager also 3 writes this total into the daily sheet log. The manager then prepares a deposit slip with 4 the same number and deposits the money and deposit slip at the bank. Part of the 5 manager’s job is to check the computer total against the number on the deposit slip. 6 No evidence was introduced as to total sales as reflected by the registers or the 7 amounts on the drop slips cashiers recorded when they made drops to the safe. 8 The deposit log, deposit slip, and computer printout of the manually entered 9 numbers relating to August 17, 2007, were all entered into evidence. The computer 10 printout showed a figure of $9622.50 cash. The deposit log contained a handwritten 11 entry by Defendant that indicated $8622.50, but the eight had apparently been written 12 over a nine (or vice versa). The deposit s lip indicated $8622.50. The deposit log also 13 indicated that on the following day the bank confirmed the deposit. It is not clear, 14 however, whether this would have referred to the number before or after the write15 over. The entry for August 17 was made by Defendant. The deposit log also 16 contained a write-over on the August 20, 2007, entry that was made by Ms. Dearth. 17 The only other evidence that the money mi ght have existed came from the following 18 exchange during the redirect of Ms. Dearth: 193 State: If one makes an addition or subtraction error in the cash, what[ is] 1 probably going to show on the computer printout the next day? 2 Ms. Dearth: It[ is] going to show you over or short. 3 State: So, let[us] say, I make a mistake by $1000 for instance, and I put 4 that wrong amount on the deposit slip. What[ is] going to show 5 on the next day’s computer printout? 6 Ms. Dearth: It[ is] going to show that we’re $1000 short. 7 State: And, in this particular instance, did it? 8 Ms. Dearth: No. 9 State: So the money was physically gone, would that be a fair 10 assessment? 11 Ms. Dearth: Yes. 12 Officer Karst indicated that Defendant’s demeanor was “hollow,” and that he 13 was surprised that she had not acted “shocke d” at the accusations against her. The 14 officer testified that Defendant had told hi m that she counted the money twice: the 15 first time she counted the money, she obtained a result of $9622.50; however, the 16 second time, she calculated $8622.50. The offi cer testified that Defendant offered no 17 explanation for this discrepancy and that De fendant stated that she did not notice the 18 discrepancy until later. 19 II. DISCUSSION 204 Defendant argues that there was not sufficient evidence to support her 1 conviction because the State did not present evidence to show that the $1000 2 Defendant was convicted of embezzling ever existed. The State appears to argue that 3 Defendant’s failure to claim she had made a mistake proves that she did not make a 4 mistake. The State also argues that any mistake would have appeared on the printout 5 the following day. 6 “[T]he test to determine the sufficien cy of evidence in New Mexico . . . is 7 whether substantial evidence of either a di rect or circumstantial nature exists to 8 support a verdict of guilt beyond a reasonabl e doubt with respect to every element 9 essential to a conviction.” State v. Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 10 (1988). “In reviewing the sufficiency of th e evidence, we must view the evidence in 11 the light most favorable to the guilty verdict, indulging all reasonable inferences and 12 resolving all conflicts in the evid ence in favor of the verdict.” State v. Cunningham , 13 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. “This court does not weigh the 14 evidence and may not substitute its judgment for that of the fact finder so long as there 15 is sufficient evidence to support the verdict.” Sutphin , 107 N.M. at 131, 753 P.2d at 16 1319. 17 Our standard of review regarding suffi ciency of the evid ence is extremely 18 deferential. This is a result of our re spect for “the jury’s fundamental role as 195 fact[]finder in our system of justice.” State v. Vigil , 2010-NMSC-003, ¶ 4, 147 N.M. 1 537, 226 P.3d 636 (internal quotation marks and citation omitted). However, against 2 this deference we must balance “our own responsibility to ascertain whether there was 3 sufficient evidence for any reasoning fact[]finder to conclude beyond a reasonable 4 doubt that there was evidence estab lishing [the d]efendant’s guilt[,]” id. ¶ 5, in order 5 to fulfill our “duty to assurethat the basis of a convic tion is not mere speculation.” 6 Id. ¶ 19 (internal quotation marks and citation omitted). 7 Jury instruction number 4 set forth the elements that the State was required to 8 prove to the jury beyond a reasonable doubt. These elements were: 9 1. The [D]efendant was entrusted with depositing daily deposits for 10 Sundial Corporation including $1,000.00; 11 2. The [D]efendant converted this $1000.00 to the [D]efendant’s 12 own use. “Converting someth ing to one’s own use” means 13 keeping another’s property ratherthan returning it, or using 14 another’s property for one’s ow n purpose rather than for the 15 purpose intended by the owner. 16 3. At the time the [D]efendant converted the $1,000.00, the 17 [D]efendant fraudulently intended to deprive the owner of the 18 owner’s property. “Fraudulen tly intended” means intended to 19 deceive or cheat; 20 4. This happened in New Mexico on or about the 17th day of 21 August, 2007. 22 As we understand Defendant’s argument, Defe ndant challenges only that the State did 23 not prove the existence of the $1000. Wetherefore limit our review to element 246 one: whether the State proved that Defendant was entruste d with $1000. We read this 1 element to require that the State provethat $9622.50 was dropped into the safe, of 2 which Defendant converted $1000 and deposited $8622.50. 3 Although the State may prove elements using only circumstantial evidence, it 4 may not hypothesize that an item exists in order to prove an element using evidence 5 that that item was never found. For example, in State v. Duran , the defendant was 6 convicted of murdering a woman by stabbing her repeatedly. 2006-NMSC-035, 7 ¶¶ 1, 3, 140 N.M. 94, 140 P.3d 515. In addition, he was c onvicted of tampering with 8 evidence, apparently because police were unable to find either the murder weapon or 9 any bloody clothing. See id. ¶ 13. The Supreme Court reversed the tampering 10 conviction because it was not supported by substantial evidence. Id. ¶ 16. The Court 11 was first careful to note thatsuch a charge could be proven using only circumstantial 12 evidence; however, such evid ence still had to prove an affirmative act of tampering. 13 Id. ¶ 13. Reviewing the evidence under the de ferential standard afforded to jury 14 verdicts, the Court observed that “we have no evidence of an overt act to destroy or 15 hide any knife or blood stained clothing, if such clothing did in fact exist. ” Id. ¶ 15 16 (emphasis added). In other words, failure to find th e knife, which circumstantial 17 evidence indicated existed, did not prove th at the defendant had hidden it, and failure 187 to find the clothes was meaningless when nothing in evidence suggested such clothes 1 even existed. 2 The State presented no direct evidence th at the $1000 existed. Instead, the State 3 relied on three pieces of circumstantial eviden ce. First, the State introduced evidence 4 that Defendant typed $9622.50 (or amounts adding up to $9622.50) into the computer 5 but recorded and deposited only $8622.50. No rational jury could conclude that the 6 $1000 existed based on this discrepancy alone. Second, the State introduced two 7 computer printouts cont aining the $9622.50 number base d on Defendant’s manual 8 entries. The printouts also contained a column labeled “Cash Over/Sht” showing what 9 might be a $71.88 shortage on August 17 and a $5.24 shortage on August 18. In fact, 10 every day on the printout contains either a shortage or an overage of up to $100. No 11 evidence was introduced to e xplain the meaning of this column, how it was calculated, 12 or how it was entered into the computer. In particular, no evidence showed that the 13 column was computed based on a reliable count of money in the cash registers or drop 14 logs. Taken together, these facts still coul d not lead a reasoning jury to conclude that 15 the $1000 existed. 16 The State’s best evidence is Ms. Dearth ’s testimony that a data entry mistake 17 would have resulted in an overage or shortage. On redi rect, the State framed the 18 following hypothetical: “So, let [us] say, I make a mistake . . . [w]hat[ is] going to 198 show on the next day’s computer printout ?” Ms. Dearth responded that the printout 1 would show a shortage. But Ms. Dearth did not explain the overage/shortage column 2 on Exhibits 2 and 6, or why and how mistakes would show up in that column on the 3 next day or on any day. Nor did she e xplain why this column always showed an 4 overage or shortage. Critically, she did not explain whether this column took into 5 account data–such as the cash register totals–that was tied not to manually entry, but 6 instead to an independent indicator of howmuch money was physically present. The 7 jury was left to speculate as to what colu mns are added or subtracted to what other 8 columns on the exhibits to produce this number. No combination of columns, 9 additions, or subtractions that this Court could find make s the numbers on the 10 printouts balance. The overa ge/shortage column, at least on the record before us, is 11 inscrutable. 12 Nevertheless, based on a hypothetical thatassumed a mistake had been made, 13 the State led Ms. Dearth to agree that, since the report did not indicate a $1000 14 shortage on the following day, “the money was physically gone.” Ms. Dearth’s 15 response to this leading hypotheticals is not evidence that the money existed and, 16 without more, could not be accepted by a rational juror as proof that the $1000 17 existed. Indeed, her testimony only makes sense if one assumes that the 189 overage/shortage column was tied to an accurate count of the money that was 1 deposited. But this assumption is not supported by the record. 2 As in Duran , the State’s case requires the jury to assume that certain evidence 3 existed before an inference of guilt can be made. However, also like Duran , the State 4 did not sufficiently prove the existence of that evidence. Instead, the jury was 5 required to infer that the $1000 existe d based on the unexplained value in the 6 overage/shortage column. Since the State di d not introduce evidence, such as the drop 7 receipts or cash register totals, to show that the $1000 existed, this line of reasoning 8 is only possible if the jury speculates that the value in this column somehow reflected 9 the amount of money deposited. 10 We are not alone in our concern that the State did not meet its burden. During 11 the discussion of Defendant’s motion for a di rected verdict of acquittal, the district 12 court repeatedly asked the State what evidence it had presented that $1000 ever 13 existed. Additionally, the jury submitted qu estions to the judge. Several of these 14 questions were directed to evidence that w ould have established the existence of the 15 $1000 such as the cash register balances and the drop bag receipts. The judge 16 instructed the jury that it would “have to rely on the evidence presented at trial.” 17 Although we do not consider these factors in reaching our decision, they serve to 1810 highlight the fact that the shortcomings in the State’s case were evident to all parties 1 involved. 2 III. CONCLUSION 3 For the foregoing reasons, we re verse Defendant’s conviction. 411 IT IS SO ORDERED. 1

2 MICHAEL D. BUSTAMANTE, Judge 3

WE CONCUR: 4

5 CELIA FOY CASTILLO, Chief Judge 6

7 JAMES J. WECHSLER, Judge 8