State v. Sivils ( 2023 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number:
3 Filing Date: August 30, 2023
4 No. A-1-CA-39045
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 CRYSTAL SIVILS,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
11 Michael H. Stone, District Court Judge
12 Raúl Torrez, Attorney General
13 Laurie Blevins, Assistant Attorney General
14 Santa Fe, NM
15 for Appellee
16 Bennett J. Baur, Chief Public Defender
17 Kathleen T. Baldridge, Assistant Appellate Defender
18 Santa Fe, NM
19 for Appellant
1 OPINION
2 IVES, Judge.
3 {1} After a jury trial, Defendant Crystal Dawn Sivils was convicted of conspiracy
4 to commit bringing contraband into a jail. See NMSA 1978, § 30-28-2 (1979)
5 (conspiracy); NMSA 1978, § 30-22-14(B) (2013) (bringing contraband into a jail).
6 On appeal, Defendant argues that (1) fundamental error occurred in the manner the
7 jury was instructed on the elements of the offense; and (2) there was insufficient
8 evidence to support her conviction. 1 As to the first argument, we agree with
9 Defendant. The district court gave the jury an instruction on the offense of
10 conspiracy that deviated from the applicable uniform instruction, UJI 14-2810
11 NMRA, and the given instruction omitted essential elements of the offense. We
12 conclude that this instruction was erroneous, and although Defendant did not object
13 to it at trial, we reverse Defendant’s conviction under the doctrine of fundamental
14 error. As a result, we consider Defendant’s sufficiency claim for the purpose of
15 determining whether principles of double jeopardy bar retrial. Defendant argues, and
16 the State agrees, that we should measure the evidence against the actual essential
17 elements of conspiracy, rather than erroneous instructions given at trial. On this legal
18 question, we believe some tension exists within New Mexico precedent and between
1
Defendant also argues that she received ineffective assistance of counsel at
the trial level. Because we reverse her sole conviction on other grounds, we do not
reach this claim of error.
1 a New Mexico precedent and a precedent of the United States Supreme Court.
2 Because the parties have not addressed that tension, we decline to resolve the legal
3 question, and we instead assume without deciding that the parties are correct.
4 Measuring the evidence against the actual elements of conspiracy, we conclude that
5 the evidence sufficed and that retrial is therefore permissible.
6 BACKGROUND
7 {2} At trial, the State adduced evidence of the following facts. On the morning of
8 April 11, 2017, a detective with the Lovington Police Department was using the
9 men’s restroom at the Lovington Magistrate Court when he spotted what appeared
10 to be a “white balloon” in the courthouse urinal. Upon further investigation, the
11 officer discovered that the interior of this balloon contained a variety of pills, what
12 appeared to be marijuana, a handcuff key, some matches, and an unidentified
13 “squishy substance.” Later lab analysis confirmed that the contents included
14 marijuana and methamphetamine.
15 {3} The investigating officer suspected that the balloon was likely a “dead drop,”
16 which is an item dropped off in a specific location by one person for later pickup by
17 another person. To identify potential recipients of the balloon, another officer
18 investigated whether any people who were incarcerated had been scheduled to
19 appear in the Lovington Magistrate Court around the time the contraband was
20 discovered. That officer found that, on the morning the balloon was found, two men
2
1 being housed at the Lea County Detention Center had attended hearings. Although
2 neither had asked to use the restroom, law enforcement officers reviewed recent
3 phone calls made by these two men to look for “any suspicious conversations
4 between those two inmates [and] other outside people.” The officers determined that
5 one of the men, Aaron Gutierrez, had spoken with Defendant in the days before and
6 after the balloon was discovered. At the time of these conversations, Defendant and
7 Mr. Gutierrez were engaged to be married.
8 {4} Two such recorded conversations, one of a jail call and another of a jail visit,
9 were admitted into evidence. In the first conversation, Mr. Gutierrez said that
10 someone would be calling Defendant to “give [her] a rundown on some stuff” about
11 which Defendant “already kn[e]w,” to which Defendant answered, “Yeah.” Mr.
12 Gutierrez then told Defendant that this caller would “tell [her] everything,” including
13 “how it’s going to go, how you do it, where to do it.” In the same conversation, Mr.
14 Gutierrez told Defendant that she would need to “borrow [a friend’s] baby” so that
15 Defendant could “go to the men’s room for [Mr. Gutierrez],” or get “somebody that
16 can do it.” In the second conversation, which was recorded the day after the
17 contraband was found in the urinal, Defendant talked to Mr. Gutierrez about some
18 gold or red “balloons” that she had ordered “for [a] wedding,” and said, “I think
19 something happened to the order, it didn’t go through.”
3
1 {5} When interviewed by investigating officers, Defendant confirmed that after
2 speaking to Mr. Gutierrez, she had received a phone call and subsequently picked
3 up a “package” from a third party—the girlfriend of a man who was incarcerated
4 with Mr. Gutierrez. She was told by this third party to get someone to put this
5 package in the men’s restroom at the Lovington Magistrate Court. However, despite
6 these acknowledgements, Defendant told the interviewing officer that she did not
7 know the contents of the package, nor did she know why Mr. Gutierrez wanted her
8 to meet with the third party.
9 {6} When Defendant testified, she did not dispute receiving the box from the third
10 party, or that she was told to get the package into the men’s room. However, she
11 denied any knowledge about what was “going on,” and stated that her comments
12 during the second conversation regarding balloons pertained to decorative balloons
13 for her upcoming wedding with Mr. Gutierrez. She also denied any knowledge of
14 the contents of the package itself, and stated that never saw a “balloon”—only a box.
15 {7} The jury found Defendant guilty of conspiracy to commit bringing contraband
16 into a jail. She appeals.
17 DISCUSSION
18 I. The Jury Instructions Are Fundamentally Erroneous
19 {8} Defendant contends that fundamental error occurred because the jury received
20 an instruction on the offense of conspiracy that did not include the essential elements
4
1 of the offense. Specifically, Defendant argues that when the district court instructed
2 the jury on the elements of conspiracy to commit bringing contraband into a jail, it
3 departed from the applicable uniform instruction, UJI 14-2810, and instead gave a
4 “hybrid instruction” that incorporated aspects of the crime of conspiracy as well as
5 the conspiracy’s target offense of bringing contraband into a jail. Relying on the
6 doctrine of fundamental error, Defendant argues that the error in the instruction
7 warrants reversal even though Defendant failed to object to the instruction at trial.
8 See Rule 12-321(B)(2)(c) NMRA (stating that an appellate court may, in its
9 discretion, consider a claim of fundamental error for the first time on appeal). We
10 agree for the reasons that follow.
11 {9} Fundamental error exists if it would “shock the [court’s] conscience” to affirm
12 the conviction, State v. Barber, 2004-NMSC-019, ¶ 14, 135 N.M. 621, 92 P.3d 633,
13 either because of “the obvious innocence of the defendant,” id. ¶ 16, or because “a
14 mistake in the process makes a conviction fundamentally unfair notwithstanding the
15 apparent guilt of the accused.” Id. ¶ 17. As our Supreme Court recognized over a
16 century ago, the fundamental error doctrine requires an appellate court to perform a
17 difficult and often high-stakes inquiry. See State v. Garcia, 1914-NMSC-065, ¶¶ 17-
18 21, 19 N.M. 414, 143 P. 1012 (opinion upon rehearing). On the one hand, we must
19 consider the judiciary’s imperative to protect fundamental rights (even when claims
20 of error have not been preserved). See id. ¶ 18. On the other hand, we must not
5
1 invoke the doctrine “in aid of strictly legal, technical, or unsubstantial claims.” Id.
2 ¶ 19.
3 {10} As it pertains to jury instructions, fundamental error analysis follows two
4 steps. State v. Ocon, 2021-NMCA-032, ¶ 7, 493 P.3d 448. First, we determine
5 whether error occurred. See id. Thus, our review “begins at the same place as our
6 analysis for reversible error.” Barber, 2004-NMSC-019, ¶ 19. Our task is to
7 “determine whether a reasonable juror would have been confused or misdirected by
8 the jury instruction.” Id. Importantly, “juror confusion or misdirection may stem not
9 only from instructions that are facially contradictory or ambiguous, but from
10 instructions which, through omission or misstatement, fail to provide the juror with
11 an accurate rendition of the relevant law.” State v. Benally, 2001-NMSC-033, ¶ 12,
12 131 N.M. 258, 34 P.3d 1134.
13 {11} If we conclude that the jury instruction was erroneous, we move to step two,
14 asking whether that error was fundamental. Ocon, 2021-NMCA-032, ¶ 8. The scope
15 of this analysis is broad: we “review the entire record, placing the jury instructions
16 in the context of the individual facts and circumstances of the case, to determine
17 whether the [d]efendant’s conviction was the result of a plain miscarriage of justice.”
18 Barber, 2004-NMSC-019, ¶ 19 (internal quotation marks and citation omitted). The
19 “failure to instruct the jury on an essential element, as opposed to a definition,
20 ordinarily is fundamental error.” Id. ¶ 20 (emphasis added); see State v. Osborne,
6
1 1991-NMSC-032, ¶ 38, 111 N.M. 654, 808 P.2d 624. However, not every failure to
2 instruct on an essential element amounts to fundamental error. State v. Orosco, 1992-
3 NMSC-006, ¶ 17, 113 N.M. 780, 833 P.2d 1146. Under two exceptions to the general
4 rule, which we discuss below, the omission of an essential element does not amount
5 to fundamental error. See Ocon, 2021-NMCA-032, ¶¶ 9-12.
6 {12} In Defendant’s case, this analysis leads us to conclude that the jury instruction
7 at issue was erroneous because its omission of essential elements would be
8 misleading or confusing to a reasonable juror, and that the error here is fundamental
9 because neither of the exceptions applies. We explain our rationale for each
10 conclusion in turn.
11 A. The Jury Instruction for Conspiracy Erroneously Omitted the Essential
12 Elements of the Offense
13 {13} Defendant was tried on a single charge of conspiring to bring contraband into
14 a jail. See § 30-28-2(A) (“Conspiracy consists of knowingly combining with another
15 for the purpose of committing a felony within or without this state.”). In New
16 Mexico, the offense of conspiracy has two essential elements: (1) an intentional
17 agreement, manifested by words or acts, to commit the offense which is the object
18 of the conspiracy; and (2) the intention to commit the offense which is the object of
19 the conspiracy. See State v. Saiz, 2017-NMCA-072, ¶ 23, 404 P.3d 422; accord UJI
20 14-2810. Each element entails a different mens rea: “Conspiracy in New Mexico
21 requires both an intent to agree and an intent to commit the offense which is the
7
1 object of the conspiracy.” State v. Baca, 1997-NMSC-059, ¶ 51, 124 N.M. 333, 950
2 P.2d 776. The actus reus is the formation of the agreement—an act that our Supreme
3 Court has called the “gist” of conspiracy. State v. Deaton, 1964-NMSC-062, ¶ 5, 74
4 N.M. 87, 390 P.2d 966. These essential elements are set forth in the uniform jury
5 instruction that our Supreme Court has approved for use in conspiracy cases, UJI
6 14-2810. Had the district court used UJI 14-2810, the jury would have been
7 instructed that the State had to prove, in pertinent part, two essential elements: (1)
8 that “[t]he defendant and another person by words or acts agreed together to commit
9 [bringing contraband into the jail]” and (2) that “[t]he defendant and the other person
10 intended to commit [bringing contraband into the jail].”
11 {14} Instead of instructing the jury in accordance with UJI 14-2810, the district
12 court gave the jury only one instruction regarding conspiracy, Instruction No. 4,
13 which identifies the essential elements in pertinent part as: (1) “Defendant
14 knowingly and voluntarily conspired to have a co-conspirator carry contraband into
15 the confines of a county or municipal jail”; and (2) “Defendant knew she was
16 carrying contraband.” Although precedent required the district court to give UJI 14-
17 2810 “without substantive modification,” State v. Caldwell, 2008-NMCA-049, ¶ 24,
18 143 N.M. 792, 182 P.3d 775, the failure to give a mandatory instruction does not
19 automatically warrant reversal. State v. Dominguez, 2014-NMCA-064, ¶ 18, 327
20 P.3d 1092. Rather, “it is the failure to give a mandatory instruction on the law
8
1 essential for a conviction that constitutes reversible error.” Id.; see UJI-Criminal
2 General Use Note (“To avoid fundamental error, it is the duty of the court to properly
3 instruct the jury on the law.”). As such, we must determine whether Instruction No.
4 4 “fairly and accurately state[s] the applicable law” of conspiracy. State v. Hamilton,
5 1976-NMSC-082, ¶ 23, 89 N.M. 746, 557 P.2d 1095. We conclude that it does not.
6 To explain, we consider each element of Instruction No. 4 in turn.
7 {15} The first element of Instruction No. 4 is an unhelpful circular statement. The
8 jury was told, in effect, that to convict Defendant of conspiracy to bring contraband
9 into a jail, it was required to find that Defendant conspired to carry contraband into
10 a jail. This first element failed to convey to the jury either of the actual essential
11 elements of the crime; it provided no guidance whatsoever about the specific
12 meaning of the term “conspiracy” under New Mexico law.
13 {16} These gaps are not filled by the second element of Instruction No. 4. The
14 second element does not say anything about the actus reus for conspiracy—an
15 agreement between Defendant and at least one coconspirator. As to mens rea, the
16 second element asks the jury to consider a question only tangentially related to
17 Defendant’s conspiracy charge: whether “Defendant knew she was carrying
18 contraband.” That is the mens rea for the offense which was the object of
19 Defendant’s conspiracy: bringing contraband into a jail. See State v. Gonzalez, 2005-
20 NMCA-031, ¶ 16, 137 N.M. 107, 107 P.3d 547 (noting that “[t]he offense of
9
1 bringing contraband into a jail . . . has a mens rea essential element: knowledge of
2 the possession”). But it is not the mens rea for conspiracy. Conspiracy involves two
3 separate intent requirements: (1) intention to form the agreement; and (2) intention
4 “to commit the offense which is the object of the conspiracy.” Baca, 1997-NMSC-
5 059, ¶ 51. Whether or not “Defendant knew she was carrying contraband” might
6 relate circumstantially to the actual mens rea requirements for conspiracy, but it is
7 not conclusive proof of either of them. Not everybody who knowingly carries
8 contraband has intentionally formed an agreement with others or aims to bring that
9 contraband into a place of imprisonment. Thus, the second element of Instruction
10 No. 4 asked the jury to determine whether Defendant was guilty of conspiracy based
11 on an inaccurate and misleading statement regarding the actual mens rea for
12 conspiracy.
13 {17} In sum, because Instruction No. 4 omitted the essential elements of
14 conspiracy, it failed to provide the jurors with “an accurate rendition of the relevant
15 law.” Benally, 2001-NMSC-033, ¶ 12. We therefore conclude, as to the first step of
16 the fundamental error analysis, that the given instruction would mislead or misdirect
17 a reasonable juror and that the instruction was erroneous. See id. We now turn to
18 step two in the analysis.
10
1 B. The Error Is Fundamental
2 {18} Although the omission of an essential element “ordinarily is fundamental
3 error,” Barber, 2004-NMSC-019, ¶ 20, our precedents describe two exceptions
4 “under which the omission of an essential element does not amount to fundamental
5 error.” Ocon, 2021-NMCA-032, ¶ 9. Here, as we will explain, neither exception
6 supports affirmance.
7 {19} The first exception applies when the jury implicitly finds that the state has
8 proven the omitted element. See id. ¶ 10. This occurs when the jury makes a specific
9 finding that—in the context of the facts and circumstances of the case—necessarily
10 includes a finding of the omitted element. See generally id. (collecting and analyzing
11 the precedents of our Supreme Court applying this exception, beginning with
12 Orosco, 1992-NMSC-006.
13 {20} The first exception does not support affirmance here because we are unable to
14 conclude that the jury implicitly found the essential elements of conspiracy. It is not
15 clear that by making the findings called for by Instruction No. 4, the jury effectively
16 determined the elements of conspiracy. To begin, we see no such effective
17 determination in the jury’s actual finding that Defendant “knew she was carrying
18 contraband.” This actual finding does not necessarily include a finding as to either
19 the actus reus or the two intents essential to the crime of conspiracy. The only other
20 actual finding made by the jury pertained to the circular part of Instruction No. 4,
11
1 and the circularity makes it impossible to determine whether the jury implicitly
2 found the omitted essential elements. The jury found that “Defendant knowingly and
3 voluntarily conspired to have a co-conspirator carry contraband into the confines of
4 a county or municipal jail.” The meaning of this finding is a mystery. We decline to
5 speculate that whatever meaning the jury assigned to the word “conspired” happened
6 to match or encompass the essential elements of the offense of conspiracy under
7 New Mexico law. Accordingly, we conclude that the first exception does not support
8 affirmance.
9 {21} The second exception only applies when “the jury’s verdict, considered
10 together with the given instructions and the parties’ legal and factual presentations,
11 leaves no doubt that the jury would have found the omitted element if properly
12 instructed.” Ocon, 2021-NMCA-032, ¶ 11; see also id. ¶¶ 11-12 (discussing New
13 Mexico Supreme Court case law applying this exception, focusing on State v.
14 Stevens, 2014-NMSC-011, ¶¶ 42-46, 323 P.3d 901). Importantly, this second
15 exception is narrow and will support affirmance only when “proof of the omitted
16 element is so strong that no rational jury could have failed to find that element” and,
17 even if the evidence is that strong, the missing element was not “‘disputed’ or ‘in
18 issue’ at trial.” Ocon, 2021-NMCA-032, ¶ 12.
19 {22} The second exception does not support affirmance here because at least one
20 of the omitted elements was clearly “disputed” at trial. See id. (internal quotation
12
1 marks omitted). Specifically, much of Defendant’s evidence was introduced to raise
2 doubt about whether Defendant and another person “agreed together” to bring the
3 contraband into the jail. See UJI 14-2810. For example, to raise doubts about the
4 State’s theory that the jail conversations between Defendant and Mr. Gutierrez
5 demonstrated knowledge of—and acquiescence to—the scheme, Defendant testified
6 that these conversations concerned decorative balloons and flowers for their future
7 wedding, as well as Defendant’s work as a certified florist. Relatedly, Defendant
8 testified that she “didn’t know what [Mr. Gutierrez] meant” when she was told by
9 him that someone “was going to call [her]” regarding an unspoken matter. More
10 generally, Defendant testified that she was “manipulated” and “used”—implying
11 that she was an unwitting aid to the criminal enterprise. Whatever the ultimate
12 persuasive power of Defendant’s testimony, we believe that her testimony was
13 “evidence or suggestion in the facts, however slight, that could have put the element”
14 of intentional agreement in issue. Orosco, 1992-NMSC-006, ¶ 10. Accordingly, we
15 cannot affirm her conviction under the second exception to the fundamental error
16 doctrine.
17 {23} Because neither of the exceptions applies, and the jury was not instructed on
18 either of the essential elements of conspiracy, we apply the general rule and hold
19 that the omission of the essential elements of the offense of conspiracy amounted to
20 fundamental error. We therefore reverse Defendant’s conviction
13
1 C. We See No Basis for Affirmance in the State’s Arguments
2 {24} The State acknowledges that some form of instructional error occurred but
3 contends that such error is not fundamental. We believe that this contention misses
4 the mark because the State misunderstands Defendant’s claim of error. Instead of
5 confronting Defendant’s arguments regarding Instruction No. 4, the State argues that
6 a separate jury instruction—Instruction No. 3—is not fundamentally erroneous. 2 As
7 such, the State’s arguments on appeal do not squarely address Defendant’s claim of
8 fundamental error, which—as we have seen—is based entirely on issues related to
9 Instruction No. 4.
10 {25} Even putting this confusion aside and construing the State’s brief to argue that
11 we should look to the content of Instruction No. 3 to assist in our analysis of
12 Instruction No. 4, we see no sound basis for affirmance. Instruction No. 3 is simply
13 not pertinent to our analysis of the conspiracy instruction because Instruction No.
14 3—on its face—instructs the jury on an entirely separate (and uncharged) offense:
15 “attempting to bring contraband into a jail.” We recognize that “in a fundamental
16 error analysis jury instructions should be considered as a whole and a failure to
2
For example, the State argues that “the most important” reason why the
instructional error in this case is not fundamental is because Defendant invited the
error by proffering Instruction No. 3. See State v. Handa, 1995-NMCA-042, ¶ 35,
120 N.M. 38, 897 P.2d 225 (“[T]he doctrine of fundamental error has no application
in cases where the defendant, by [their] own actions, invites error.”). Although the
State is correct that Defendant proffered Instruction No. 3, the record clearly
indicates that the State proffered Instruction No. 4.
14
1 include an essential element in the elements section may be corrected by subsequent
2 proper instructions that adequately addresses the omitted element.” State v.
3 Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176. However, we do
4 not believe that Instruction No. 3 can function to correct the errors and omissions of
5 Instruction No. 4 because the former is not itself a proper instruction that adequately
6 addresses the omitted element. We view Instruction No. 3 as entirely improper for
7 the purpose of addressing omitted elements from the conspiracy instruction because
8 Instruction No. 3 did not pertain to conspiracy; it pertained to attempt. See § 30-28-
9 2 (conspiracy statute); NMSA 1978, § 30-28-1 (1963) (attempt statute). We do not
10 believe that Cunningham allows a reviewing court to rely on language from an
11 instruction about one offense to correct misstatements or omissions in an instruction
12 that pertains to a different offense. In Cunningham, our Supreme Court considered
13 the instructions pertaining to first-degree murder as a whole; it did not consider
14 instructions pertaining to other offenses. See 2000-NMSC-009, ¶¶ 14-22 (declining
15 to reverse the defendant’s conviction under fundamental error because although the
16 jury instruction on deliberate-intent first-degree murder improperly omitted the
17 element of unlawfulness, this omission was corrected by a proper self-defense
18 instruction that pertained to the deliberate-intent first-degree murder charge). To
19 extend Cunningham to apply to the circumstances here, we would have to presume
20 that the jury failed to understand or failed to comply with Instruction No. 3, which
15
1 stated that it pertained to “attempting to bring contraband into a jail.” Precedent
2 requires us to make the opposite presumption; we must presume “that the jury
3 understood and complied” with the instructions, including Instruction No. 3, see
4 Britton v. Boulden, 1975-NMSC-029, ¶ 6, 87 N.M. 474, 535 P.2d 1325, and that the
5 jury therefore did not rely on Instruction No. 3 for an understanding of the elements
6 of the offense of conspiracy. We do not believe that precedent allows us to affirm
7 based on the contents of Instruction No. 3.
8 {26} For these reasons, we conclude that the State’s arguments do not support
9 affirmance.
10 II. Sufficient Evidence Supports Defendant’s Conviction
11 {27} Having reversed Defendant’s conviction, we must address her sufficiency of
12 the evidence argument because double jeopardy principles would bar retrial if her
13 conviction is not supported by sufficient evidence. See State v. Sanchez, 2000-
14 NMSC-021, ¶ 30, 129 N.M. 284, 6 P.3d 486. Our task is to determine “whether
15 substantial evidence of either a direct or circumstantial nature exists to support a
16 verdict of guilt beyond a reasonable doubt with respect to every element essential to
17 a conviction.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d
18 1314. We “view[] the evidence in a light most favorable to the verdict, considering
19 that the [s]tate has the burden of proof beyond a reasonable doubt.” State v. Garcia,
20 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72. “We do not reweigh the evidence
16
1 or substitute our judgment for that of the fact[-]finder as long as there is sufficient
2 evidence to support the verdict.” State v. Gipson, 2009-NMCA-053, ¶ 4, 146 N.M.
3 202, 207 P.3d 1179.
4 {28} Although sufficiency of the evidence is ordinarily assessed based on the
5 instructions given to the jury, see State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M.
6 729, 726 P.2d 883, here both parties ask us to take a different approach because the
7 jury received erroneous instructions. The parties agree that instead of measuring the
8 evidence against the erroneous instruction given to the jury, we should use the actual
9 essential elements of conspiracy as the yardstick. Defendant contends that to do
10 otherwise would present “serious due process concerns” because the misstated
11 instructions “relieve the State of its actual burden of proof.” The State says that
12 Defendant’s argument on this point is “well taken,” and that “[r]ecognizing the
13 faulty instruction with the missing intent element as the ‘law of the case’ would
14 relieve the State of its burden to prove both that she made the agreement and that
15 she intended by the agreement that a crime be committed.”
16 {29} To support the approach agreed upon by the parties, Defendant cites several
17 cases in which she contends our appellate courts “reversed convictions where the
18 evidence is legally insufficient based on an interpretation of the law not reflected in
19 the jury instructions.” We believe that at least one of these cases—State v.
20 Stephenson, 2017-NMSC-002, 389 P.3d 272—provides some support for the
17
1 parties’ proposed approach. In Stephenson, our Supreme Court measured the
2 sufficiency of the evidence against the interpretation of the statute that the Court
3 announced in the opinion itself, not based on the incomplete essential elements given
4 to the jury at trial. See id. ¶¶ 2, 12-28; see also id. ¶ 12 (“The question we must
5 address is whether the evidence was sufficient to convict Defendant of abandonment
6 resulting in great bodily harm. The answer to this question depends on the scope
7 intended by the Legislature for the crime of abandonment.”). Stephenson seems to
8 support the approach proposed by Defendant and conceded by the State—that we
9 should look to the actual legal definition of the charged offense.
10 {30} But this Court reached the opposite conclusion in a case cited by neither party,
11 State v. Rosaire, 1996-NMCA-115, 123 N.M. 250, 939 P.2d 597. In Rosaire, this
12 Court reversed the defendant’s conviction because the jury was not instructed on an
13 essential element, but we nevertheless “review[ed] the sufficiency of the evidence
14 in light of the erroneous jury instruction.” Id. ¶ 20. As such, Rosaire appears to be
15 in tension—at least to some degree—with Stephenson, which our Supreme Court
16 decided two decades after this Court decided Rosaire.
17 {31} Rosaire also appears to be in tension with an opinion issued by the United
18 States Supreme Court after Rosaire was decided. See Musacchio v. United States,
19 577 U.S. 237, 243 (2016) (holding that “when a jury instruction sets forth all the
20 elements of the charged crime but incorrectly adds one more element, a sufficiency
18
1 challenge should be assessed against the elements of the charged crime, not against
2 the erroneously heightened command in the jury instruction”). In Musacchio, the
3 United States Supreme Court explained that the purpose of sufficiency analysis is to
4 protect a defendant’s right to due process and that the focus should therefore be on
5 whether “the government’s case was so lacking that it should not have even been
6 submitted to the jury.” Id. (internal quotation marks and citation omitted).
7 Accordingly, an appellate court conducting a sufficiency review is only concerned
8 with the “legal” question related to the elements of the charged crime, and this
9 “limited determination . . . does not rest on how the jury was instructed.” Id. The
10 United States Supreme Court concluded that the law-of-the-case doctrine did not
11 apply, stating that an appellate court conducting a sufficiency review “is not bound
12 by district court rulings under the law-of-the-case doctrine.” Id. at 245.
13 {32} But the parties have not addressed Rosaire or its apparent tension with other
14 precedents, and we therefore lack developed arguments about the legal question
15 before us—a question of constitutional magnitude that arises often on appeal. Under
16 these circumstances, we do not believe it would be prudent to answer this legal
17 question in Defendant’s appeal. See State v. Fuentes, 2010-NMCA-027, ¶ 29, 147
18 N.M. 761, 228 P.3d 1181 (explaining that we will “not review unclear or
19 undeveloped arguments [that] require us to guess at what a part[y’s] arguments
20 might be”) (citation omitted); Elane Photography, LLC v. Willock, 2013-NMSC-
19
1 040, ¶ 70, 309 P.3d 53 (“It is of no benefit either to the parties or to future litigants
2 for [an appellate court] to promulgate case law based on [its] own speculation rather
3 than the parties’ carefully considered arguments.”).
4 {33} However, the absence of adequate briefing on this legal question does not
5 prevent us from reaching the merits of Defendant’s sufficiency argument because
6 we conclude that the evidence suffices even under the standard advocated for by the
7 parties—a standard that ensures that Defendant’s constitutional rights are protected
8 even if Rosaire’s law of the case approach is incorrect. We believe that a reasonable
9 jury could find, based on the evidence presented at trial, that the State proved the
10 actual essential elements of conspiracy: (1) that Defendant and another person by
11 words or acts agreed together to commit bringing contraband into the jail; and (2)
12 that Defendant and the other person intended to commit bringing contraband into the
13 jail. See UJI 14-2810; Baca, 1997-NMSC-059, ¶ 51. We begin with the recorded
14 conversations. In the first, Mr. Gutierrez said that an unnamed person would be
15 calling Defendant to “give [her] a rundown on some stuff,” a subject about which
16 Defendant “already kn[e]w.” Defendant answered, “Yeah.” Later, Mr. Gutierrez told
17 Defendant that this unnamed person would tell her “how it’s going to go, how you
18 do it, where to do it.” In the same conversation, Mr. Gutierrez told Defendant that
19 she would need to “borrow [a friend’s] baby” so that Defendant could “go to the
20 men’s room for [Mr. Gutierrez],” or to get “somebody that can do it.” In the second
20
1 conversation, which occurred the day after the contraband was found in the urinal,
2 Defendant spoke to Mr. Gutierrez about some “balloons” that she had ordered, and
3 said, “I think something happened to the order, it didn’t go through.” These
4 conversations struck the jail’s chief of security as suspicious because the callers used
5 vague and unnatural language that was potentially a coded discussion of the alleged
6 conspiracy. Further circumstantial evidence is found in Defendant’s testimony that
7 she picked up a box from a third party, drove that box to the courthouse, and that the
8 contents of that box were then left in the courthouse bathroom where the contraband
9 was discovered. Viewing all of this evidence in the light most favorable to the guilty
10 verdict, we conclude that a jury could reasonably infer that Defendant intentionally
11 agreed with others to bring contraband into the jail and that she acted with the intent
12 to bring contraband into the jail. See State v. Ross, 1974-NMCA-028, ¶ 13, 86 N.M.
13 212, 521 P.2d 1161 (recognizing that a conspiracy “may be established by
14 circumstantial evidence”). Although Defendant presented evidence that might have
15 supported acquittal, the jury was free to reject her version of the facts. See State v.
16 Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.
17 {34} We hold that sufficient evidence supports Defendant’s conviction and that
18 double jeopardy principles do not bar retrial.
19 CONCLUSION
20 {35} We reverse Defendant’s conviction and remand for retrial.
21
1 {36} IT IS SO ORDERED.
2 _____________________________
3 ZACHARY A. IVES, Judge
4 WE CONCUR:
5 _______________________________
6 KRISTINA BOGARDUS, Judge
7 _______________________________
8 MICHAEL D. BUSTAMANTE, Judge,
9 retired, sitting by designation
22