State v. Sivils

                                                                                   Office of the
                                                                                       Director             New Mexico
                                                                                                            Compilation
                                                                            16:06:44 2023.10.31             Commission
                                                                                         '00'06-
            IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: August 30, 2023

No. A-1-CA-39045

STATE OF NEW MEXICO,

        Plaintiff-Appellee,

v.

CRYSTAL SIVILS,

        Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Michael H. Stone, District Court Judge

Raúl Torrez, Attorney General
Laurie Blevins, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                               OPINION

IVES, Judge.

{1}    After a jury trial, Defendant Crystal Dawn Sivils was convicted of conspiracy to
commit bringing contraband into a jail. See NMSA 1978, § 30-28-2 (1979) (conspiracy);
NMSA 1978, § 30-22-14(B) (2013) (bringing contraband into a jail). On appeal,
Defendant argues that (1) fundamental error occurred in the manner the jury was
instructed on the elements of the offense; and (2) there was insufficient evidence to
support her conviction. 1 As to the first argument, we agree with Defendant. The district
court gave the jury an instruction on the offense of conspiracy that deviated from the

1Defendant 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.
applicable uniform instruction, UJI 14-2810 NMRA, and the given instruction omitted
essential elements of the offense. We conclude that this instruction was erroneous, and
although Defendant did not object to it at trial, we reverse Defendant’s conviction under
the doctrine of fundamental error. As a result, we consider Defendant’s sufficiency claim
for the purpose of determining whether principles of double jeopardy bar retrial.
Defendant argues, and the State agrees, that we should measure the evidence against
the actual essential elements of conspiracy, rather than erroneous instructions given at
trial. On this legal question, we believe some tension exists within New Mexico
precedent and between a New Mexico precedent and a precedent of the United States
Supreme Court. Because the parties have not addressed that tension, we decline to
resolve the legal question, and we instead assume without deciding that the parties are
correct. Measuring the evidence against the actual elements of conspiracy, we conclude
that the evidence sufficed and that retrial is therefore permissible.

BACKGROUND

{2}    At trial, the State adduced evidence of the following facts. On the morning of April
11, 2017, a detective with the Lovington Police Department was using the men’s
restroom at the Lovington Magistrate Court when he spotted what appeared to be a
“white balloon” in the courthouse urinal. Upon further investigation, the officer
discovered that the interior of this balloon contained a variety of pills, what appeared to
be marijuana, a handcuff key, some matches, and an unidentified “squishy substance.”
Later lab analysis confirmed that the contents included marijuana and
methamphetamine.

{3}     The investigating officer suspected that the balloon was likely a “dead drop,”
which is an item dropped off in a specific location by one person for later pickup by
another person. To identify potential recipients of the balloon, another officer
investigated whether any people who were incarcerated had been scheduled to appear
in the Lovington Magistrate Court around the time the contraband was discovered. That
officer found that, on the morning the balloon was found, two men being housed at the
Lea County Detention Center had attended hearings. Although neither had asked to use
the restroom, law enforcement officers reviewed recent phone calls made by these two
men to look for “any suspicious conversations between those two inmates [and] other
outside people.” The officers determined that one of the men, Aaron Gutierrez, had
spoken with Defendant in the days before and after the balloon was discovered. At the
time of these conversations, Defendant and Mr. Gutierrez were engaged to be married.

{4}    Two such recorded conversations, one of a jail call and another of a jail visit,
were admitted into evidence. In the first conversation, Mr. Gutierrez said that someone
would be calling Defendant to “give [her] a rundown on some stuff” about which
Defendant “already kn[e]w,” to which Defendant answered, “Yeah.” Mr. Gutierrez then
told Defendant that this caller would “tell [her] everything,” including “how it’s going to
go, how you do it, where to do it.” In the same conversation, Mr. Gutierrez told
Defendant that she would need to “borrow [a friend’s] baby” so that Defendant could “go
to the men’s room for [Mr. Gutierrez],” or get “somebody that can do it.” In the second
conversation, which was recorded the day after the contraband was found in the urinal,
Defendant talked to Mr. Gutierrez about some gold or red “balloons” that she had
ordered “for [a] wedding,” and said, “I think something happened to the order, it didn’t go
through.”

{5}     When interviewed by investigating officers, Defendant confirmed that after
speaking to Mr. Gutierrez, she had received a phone call and subsequently picked up a
“package” from a third party—the girlfriend of a man who was incarcerated with Mr.
Gutierrez. She was told by this third party to get someone to put this package in the
men’s restroom at the Lovington Magistrate Court. However, despite these
acknowledgements, Defendant told the interviewing officer that she did not know the
contents of the package, nor did she know why Mr. Gutierrez wanted her to meet with
the third party.

{6}    When Defendant testified, she did not dispute receiving the box from the third
party, or that she was told to get the package into the men’s room. However, she denied
any knowledge about what was “going on,” and stated that her comments during the
second conversation regarding balloons pertained to decorative balloons for her
upcoming wedding with Mr. Gutierrez. She also denied any knowledge of the contents
of the package itself, and stated that never saw a “balloon”—only a box.

{7}      The jury found Defendant guilty of conspiracy to commit bringing contraband into
a jail. She appeals.

DISCUSSION

I.     The Jury Instructions Are Fundamentally Erroneous

{8}     Defendant contends that fundamental error occurred because the jury received
an instruction on the offense of conspiracy that did not include the essential elements of
the offense. Specifically, Defendant argues that when the district court instructed the
jury on the elements of conspiracy to commit bringing contraband into a jail, it departed
from the applicable uniform instruction, UJI 14-2810, and instead gave a “hybrid
instruction” that incorporated aspects of the crime of conspiracy as well as the
conspiracy’s target offense of bringing contraband into a jail. Relying on the doctrine of
fundamental error, Defendant argues that the error in the instruction warrants reversal
even though Defendant failed to object to the instruction at trial. See Rule 12-
321(B)(2)(c) NMRA (stating that an appellate court may, in its discretion, consider a
claim of fundamental error for the first time on appeal). We agree for the reasons that
follow.

{9}    Fundamental error exists if it would “shock the [court’s] conscience” to affirm the
conviction, State v. Barber, 

, 

, 

, either
because of “the obvious innocence of the defendant,” id. ¶ 16, or because “a mistake in
the process makes a conviction fundamentally unfair notwithstanding the apparent guilt
of the accused.” Id. ¶ 17. As our Supreme Court recognized over a century ago, the
fundamental error doctrine requires an appellate court to perform a difficult and often
high-stakes inquiry. See State v. Garcia, 

, ¶¶ 17-21, 

, 

 (opinion upon rehearing). On the one hand, we must consider the judiciary’s
imperative to protect fundamental rights (even when claims of error have not been
preserved). See id. ¶ 18. On the other hand, we must not invoke the doctrine “in aid of
strictly legal, technical, or unsubstantial claims.” Id. ¶ 19.

{10} As it pertains to jury instructions, fundamental error analysis follows two steps.
State v. Ocon, 

, 

. First, we determine whether error
occurred. See 

 Thus, our review “begins at the same place as our analysis for
reversible error.” Barber, 

. Our task is to “determine whether a
reasonable juror would have been confused or misdirected by the jury instruction.” 

Importantly, “juror confusion or misdirection may stem not only from instructions that are
facially contradictory or ambiguous, but from instructions which, through omission or
misstatement, fail to provide the juror with an accurate rendition of the relevant law.”
State v. Benally, 

, 

, 

.

{11} If we conclude that the jury instruction was erroneous, we move to step two,
asking whether that error was fundamental. Ocon, 

. The scope of
this analysis is broad: we “review the entire record, placing the jury instructions in the
context of the individual facts and circumstances of the case, to determine whether the
[d]efendant’s conviction was the result of a plain miscarriage of justice.” Barber, 2004-
NMSC-019, ¶ 19 (internal quotation marks and citation omitted). The “failure to instruct
the jury on an essential element, as opposed to a definition, ordinarily is fundamental
error.” Id. ¶ 20 (emphasis added); see State v. Osborne, 

, ¶ 38, 

, 

. However, not every failure to instruct on an essential element
amounts to fundamental error. State v. Orosco, 

, ¶ 17, 

,

. Under two exceptions to the general rule, which we discuss below, the
omission of an essential element does not amount to fundamental error. See Ocon,

.

{12} In Defendant’s case, this analysis leads us to conclude that the jury instruction at
issue was erroneous because its omission of essential elements would be misleading or
confusing to a reasonable juror, and that the error here is fundamental because neither
of the exceptions applies. We explain our rationale for each conclusion in turn.

A.     The Jury Instruction for Conspiracy Erroneously Omitted the Essential
       Elements of the Offense

{13} Defendant was tried on a single charge of conspiring to bring contraband into a
jail. See § 30-28-2(A) (“Conspiracy consists of knowingly combining with another for the
purpose of committing a felony within or without this state.”). In New Mexico, the offense
of conspiracy has two essential elements: (1) an intentional agreement, manifested by
words or acts, to commit the offense which is the object of the conspiracy; and (2) the
intention to commit the offense which is the object of the conspiracy. See State v. Saiz,

, 

; accord UJI 14-2810. Each element entails a
different mens rea: “Conspiracy in New Mexico requires both an intent to agree and an
intent to commit the offense which is the object of the conspiracy.” State v. Baca, 1997-
NMSC-059, ¶ 51, 

, 

. The actus reus is the formation of the
agreement—an act that our Supreme Court has called the “gist” of conspiracy. State v.
Deaton, 

, ¶ 5, 

, 

. These essential elements are
set forth in the uniform jury instruction that our Supreme Court has approved for use in
conspiracy cases, UJI 14-2810. Had the district court used UJI 14-2810, the jury would
have been instructed that the State had to prove, in pertinent part, two essential
elements: (1) that “[t]he defendant and another person by words or acts agreed together
to commit [bringing contraband into the jail]” and (2) that “[t]he defendant and the other
person intended to commit [bringing contraband into the jail].”

{14} Instead of instructing the jury in accordance with UJI 14-2810, the district court
gave the jury only one instruction regarding conspiracy, Instruction No. 4, which
identifies the essential elements in pertinent part as: (1) “Defendant knowingly and
voluntarily conspired to have a co-conspirator carry contraband into the confines of a
county or municipal jail”; and (2) “Defendant knew she was carrying contraband.”
Although precedent required the district court to give UJI 14-2810 “without substantive
modification,” State v. Caldwell, 

, 

, 

,
the failure to give a mandatory instruction does not automatically warrant reversal. State
v. Dominguez, 

, 

. Rather, “it is the failure to give a
mandatory instruction on the law essential for a conviction that constitutes reversible
error.” Id.; see UJI-Criminal General Use Note (“To avoid fundamental error, it is the
duty of the court to properly instruct the jury on the law.”). As such, we must determine
whether Instruction No. 4 “fairly and accurately state[s] the applicable law” of
conspiracy. State v. Hamilton, 

, ¶ 23, 

, 

. We
conclude that it does not. To explain, we consider each element of Instruction No. 4 in
turn.

{15} The first element of Instruction No. 4 is an unhelpful circular statement. The jury
was told, in effect, that to convict Defendant of conspiracy to bring contraband into a jail,
it was required to find that Defendant conspired to carry contraband into a jail. This first
element failed to convey to the jury either of the actual essential elements of the crime;
it provided no guidance whatsoever about the specific meaning of the term “conspiracy”
under New Mexico law.

{16} These gaps are not filled by the second element of Instruction No. 4. The second
element does not say anything about the actus reus for conspiracy—an agreement
between Defendant and at least one coconspirator. As to mens rea, the second element
asks the jury to consider a question only tangentially related to Defendant’s conspiracy
charge: whether “Defendant knew she was carrying contraband.” That is the mens rea
for the offense which was the object of Defendant’s conspiracy: bringing contraband into
a jail. See State v. Gonzalez, 

, 

, 

(noting that “[t]he offense of bringing contraband into a jail . . . has a mens rea essential
element: knowledge of the possession”). But it is not the mens rea for conspiracy.
Conspiracy involves two separate intent requirements: (1) intention to form the
agreement; and (2) intention “to commit the offense which is the object of the
conspiracy.” Baca, 

. Whether or not “Defendant knew she was
carrying contraband” might relate circumstantially to the actual mens rea requirements
for conspiracy, but it is not conclusive proof of either of them. Not everybody who
knowingly carries contraband has intentionally formed an agreement with others or aims
to bring that contraband into a place of imprisonment. Thus, the second element of
Instruction No. 4 asked the jury to determine whether Defendant was guilty of
conspiracy based on an inaccurate and misleading statement regarding the actual mens
rea for conspiracy.

{17} In sum, because Instruction No. 4 omitted the essential elements of conspiracy, it
failed to provide the jurors with “an accurate rendition of the relevant law.” Benally,

. We therefore conclude, as to the first step of the fundamental
error analysis, that the given instruction would mislead or misdirect a reasonable juror
and that the instruction was erroneous. See 

 We now turn to step two in the analysis.

B.     The Error Is Fundamental

{18} Although the omission of an essential element “ordinarily is fundamental error,”
Barber, 

, our precedents describe two exceptions “under which
the omission of an essential element does not amount to fundamental error.” Ocon,

. Here, as we will explain, neither exception supports affirmance.

{19} The first exception applies when the jury implicitly finds that the state has proven
the omitted element. See id. ¶ 10. This occurs when the jury makes a specific finding
that—in the context of the facts and circumstances of the case—necessarily includes a
finding of the omitted element. See generally id. (collecting and analyzing the
precedents of our Supreme Court applying this exception, beginning with Orosco, 1992-
NMSC-006.

{20} The first exception does not support affirmance here because we are unable to
conclude that the jury implicitly found the essential elements of conspiracy. It is not clear
that by making the findings called for by Instruction No. 4, the jury effectively determined
the elements of conspiracy. To begin, we see no such effective determination in the
jury’s actual finding that Defendant “knew she was carrying contraband.” This actual
finding does not necessarily include a finding as to either the actus reus or the two
intents essential to the crime of conspiracy. The only other actual finding made by the
jury pertained to the circular part of Instruction No. 4, and the circularity makes it
impossible to determine whether the jury implicitly found the omitted essential elements.
The jury found that “Defendant knowingly and voluntarily conspired to have a co-conspirator carry contraband into the confines of a county or municipal jail.” The
meaning of this finding is a mystery. We decline to speculate that whatever meaning the
jury assigned to the word “conspired” happened to match or encompass the essential
elements of the offense of conspiracy under New Mexico law. Accordingly, we conclude
that the first exception does not support affirmance.
{21} The second exception only applies when “the jury’s verdict, considered together
with the given instructions and the parties’ legal and factual presentations, leaves no
doubt that the jury would have found the omitted element if properly instructed.” Ocon,

; see also id. ¶¶ 11-12 (discussing New Mexico Supreme Court
case law applying this exception, focusing on State v. Stevens, 

, ¶¶ 42-
46, 

). Importantly, this second exception is narrow and will support
affirmance only when “proof of the omitted element is so strong that no rational jury
could have failed to find that element” and, even if the evidence is that strong, the
missing element was not “‘disputed’ or ‘in issue’ at trial.” Ocon, 

.

{22} The second exception does not support affirmance here because at least one of
the omitted elements was clearly “disputed” at trial. See 

 (internal quotation marks
omitted). Specifically, much of Defendant’s evidence was introduced to raise doubt
about whether Defendant and another person “agreed together” to bring the contraband
into the jail. See UJI 14-2810. For example, to raise doubts about the State’s theory that
the jail conversations between Defendant and Mr. Gutierrez demonstrated knowledge
of—and acquiescence to—the scheme, Defendant testified that these conversations
concerned decorative balloons and flowers for their future wedding, as well as
Defendant’s work as a certified florist. Relatedly, Defendant testified that she “didn’t
know what [Mr. Gutierrez] meant” when she was told by him that someone “was going
to call [her]” regarding an unspoken matter. More generally, Defendant testified that she
was “manipulated” and “used”—implying that she was an unwitting aid to the criminal
enterprise. Whatever the ultimate persuasive power of Defendant’s testimony, we
believe that her testimony was “evidence or suggestion in the facts, however slight, that
could have put the element” of intentional agreement in issue. Orosco, 1992-NMSC-
006, ¶ 10. Accordingly, we cannot affirm her conviction under the second exception to
the fundamental error doctrine.

{23} Because neither of the exceptions applies, and the jury was not instructed on
either of the essential elements of conspiracy, we apply the general rule and hold that
the omission of the essential elements of the offense of conspiracy amounted to
fundamental error. We therefore reverse Defendant’s conviction

C.      We See No Basis for Affirmance in the State’s Arguments

{24} The State acknowledges that some form of instructional error occurred but
contends that such error is not fundamental. We believe that this contention misses the
mark because the State misunderstands Defendant’s claim of error. Instead of
confronting Defendant’s arguments regarding Instruction No. 4, the State argues that a
separate jury instruction—Instruction No. 3—is not fundamentally erroneous. 2 As such,


2For 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, 

, ¶ 35, 

, 

 (“[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.
the State’s arguments on appeal do not squarely address Defendant’s claim of
fundamental error, which—as we have seen—is based entirely on issues related to
Instruction No. 4.

{25} Even putting this confusion aside and construing the State’s brief to argue that
we should look to the content of Instruction No. 3 to assist in our analysis of Instruction
No. 4, we see no sound basis for affirmance. Instruction No. 3 is simply not pertinent to
our analysis of the conspiracy instruction because Instruction No. 3—on its face—
instructs the jury on an entirely separate (and uncharged) offense: “attempting to bring
contraband into a jail.” We recognize that “in a fundamental error analysis jury
instructions should be considered as a whole and a failure to include an essential
element in the elements section may be corrected by subsequent proper instructions
that adequately addresses the omitted element.” State v. Cunningham, 2000-NMSC-
009, ¶ 21, 

, 

. However, we do not believe that Instruction No.
3 can function to correct the errors and omissions of Instruction No. 4 because the
former is not itself a proper instruction that adequately addresses the omitted element.
We view Instruction No. 3 as entirely improper for the purpose of addressing omitted
elements from the conspiracy instruction because Instruction No. 3 did not pertain to
conspiracy; it pertained to attempt. See § 30-28-2 (conspiracy statute); NMSA 1978, §
30-28-1 (1963) (attempt statute). We do not believe that Cunningham allows a
reviewing court to rely on language from an instruction about one offense to correct
misstatements or omissions in an instruction that pertains to a different offense. In
Cunningham, our Supreme Court considered the instructions pertaining to first-degree
murder as a whole; it did not consider instructions pertaining to other offenses. See

 (declining to reverse the defendant’s conviction under
fundamental error because although the jury instruction on deliberate-intent first-degree
murder improperly omitted the element of unlawfulness, this omission was corrected by
a proper self-defense instruction that pertained to the deliberate-intent first-degree
murder charge). To extend Cunningham to apply to the circumstances here, we would
have to presume that the jury failed to understand or failed to comply with Instruction
No. 3, which stated that it pertained to “attempting to bring contraband into a jail.”
Precedent requires us to make the opposite presumption; we must presume “that the
jury understood and complied” with the instructions, including Instruction No. 3, see
Britton v. Boulden, 

, ¶ 6, 

, 

, and that the jury
therefore did not rely on Instruction No. 3 for an understanding of the elements of the
offense of conspiracy. We do not believe that precedent allows us to affirm based on
the contents of Instruction No. 3.

{26} For these reasons, we conclude that the State’s arguments do not support
affirmance.

II.    Sufficient Evidence Supports Defendant’s Conviction

{27} Having reversed Defendant’s conviction, we must address her sufficiency of the
evidence argument because double jeopardy principles would bar retrial if her
conviction is not supported by sufficient evidence. See State v. Sanchez, 2000-NMSC-
021, ¶ 30, 

, 

. Our task is to determine “whether substantial
evidence of either a direct or circumstantial nature exists to support a verdict of guilt
beyond a reasonable doubt with respect to every element essential to a conviction.”
State v. Sutphin, 

, ¶ 21, 

, 

. We “view[] the
evidence in a light most favorable to the verdict, considering that the [s]tate has the
burden of proof beyond a reasonable doubt.” State v. Garcia, 

,

, 

. “We do not reweigh the evidence or substitute our judgment
for that of the fact[-]finder as long as there is sufficient evidence to support the verdict.”
State v. Gipson, 

, 

, 

.

{28} Although sufficiency of the evidence is ordinarily assessed based on the
instructions given to the jury, see State v. Smith, 

, ¶ 7, 

,

, here both parties ask us to take a different approach because the jury
received erroneous instructions. The parties agree that instead of measuring the
evidence against the erroneous instruction given to the jury, we should use the actual
essential elements of conspiracy as the yardstick. Defendant contends that to do
otherwise would present “serious due process concerns” because the misstated
instructions “relieve the State of its actual burden of proof.” The State says that
Defendant’s argument on this point is “well taken,” and that “[r]ecognizing the faulty
instruction with the missing intent element as the ‘law of the case’ would relieve the
State of its burden to prove both that she made the agreement and that she intended by
the agreement that a crime be committed.”

{29} To support the approach agreed upon by the parties, Defendant cites several
cases in which she contends our appellate courts “reversed convictions where the
evidence is legally insufficient based on an interpretation of the law not reflected in the
jury instructions.” We believe that at least one of these cases—State v. Stephenson,

, 389 P.3d 272—provides some support for the parties’ proposed
approach. In Stephenson, our Supreme Court measured the sufficiency of the evidence
against the interpretation of the statute that the Court announced in the opinion itself,
not based on the incomplete essential elements given to the jury at trial. See id. ¶¶ 2,
12-28; see also id. ¶ 12 (“The question we must address is whether the evidence was
sufficient to convict Defendant of abandonment resulting in great bodily harm. The
answer to this question depends on the scope intended by the Legislature for the crime
of abandonment.”). Stephenson seems to support the approach proposed by Defendant
and conceded by the State—that we should look to the actual legal definition of the
charged offense.

{30} But this Court reached the opposite conclusion in a case cited by neither party,
State v. Rosaire, 

, 

, 

. In Rosaire, this Court
reversed the defendant’s conviction because the jury was not instructed on an essential
element, but we nevertheless “review[ed] the sufficiency of the evidence in light of the
erroneous jury instruction.” Id. ¶ 20. As such, Rosaire appears to be in tension—at least
to some degree—with Stephenson, which our Supreme Court decided two decades
after this Court decided Rosaire.
{31} Rosaire also appears to be in tension with an opinion issued by the United States
Supreme Court after Rosaire was decided. See Musacchio v. United States, 

 (2016) (holding that “when a jury instruction sets forth all the elements of the
charged crime but incorrectly adds one more element, a sufficiency challenge should be
assessed against the elements of the charged crime, not against the erroneously
heightened command in the jury instruction”). In Musacchio, the United States Supreme
Court explained that the purpose of sufficiency analysis is to protect a defendant’s right
to due process and that the focus should therefore be on whether “the government’s
case was so lacking that it should not have even been submitted to the jury.” 

(internal quotation marks and citation omitted). Accordingly, an appellate court
conducting a sufficiency review is only concerned with the “legal” question related to the
elements of the charged crime, and this “limited determination . . . does not rest on how
the jury was instructed.” 

 The United States Supreme Court concluded that the law-of-the-case doctrine did not apply, stating that an appellate court conducting a
sufficiency review “is not bound by district court rulings under the law-of-the-case
doctrine.” 

.

{32} But the parties have not addressed Rosaire or its apparent tension with other
precedents, and we therefore lack developed arguments about the legal question before
us—a question of constitutional magnitude that arises often on appeal. Under these
circumstances, we do not believe it would be prudent to answer this legal question in
Defendant’s appeal. See State v. Fuentes, 

, 

, 

 (explaining that we will “not review unclear or undeveloped arguments [that]
require us to guess at what a part[y’s] arguments might be”) (citation omitted); Elane
Photography, LLC v. Willock, 

, 

 (“It is of no benefit
either to the parties or to future litigants for [an appellate court] to promulgate case law
based on [its] own speculation rather than the parties’ carefully considered
arguments.”).

{33} However, the absence of adequate briefing on this legal question does not
prevent us from reaching the merits of Defendant’s sufficiency argument because we
conclude that the evidence suffices even under the standard advocated for by the
parties—a standard that ensures that Defendant’s constitutional rights are protected
even if Rosaire’s law of the case approach is incorrect. We believe that a reasonable
jury could find, based on the evidence presented at trial, that the State proved the actual
essential elements of conspiracy: (1) that Defendant and another person by words or
acts agreed together to commit bringing contraband into the jail; and (2) that Defendant
and the other person intended to commit bringing contraband into the jail. See UJI 14-
2810; Baca, 

. We begin with the recorded conversations. In the
first, Mr. Gutierrez said that an unnamed person would be calling Defendant to “give
[her] a rundown on some stuff,” a subject about which Defendant “already kn[e]w.”
Defendant answered, “Yeah.” Later, Mr. Gutierrez told Defendant that this unnamed
person would tell her “how it’s going to go, how you do it, where to do it.” In the same
conversation, Mr. Gutierrez told Defendant that she would need to “borrow [a friend’s]
baby” so that Defendant could “go to the men’s room for [Mr. Gutierrez],” or to get
“somebody that can do it.” In the second conversation, which occurred the day after the
contraband was found in the urinal, Defendant spoke to Mr. Gutierrez about some
“balloons” that she had ordered, and said, “I think something happened to the order, it
didn’t go through.” These conversations struck the jail’s chief of security as suspicious
because the callers used vague and unnatural language that was potentially a coded
discussion of the alleged conspiracy. Further circumstantial evidence is found in
Defendant’s testimony that she picked up a box from a third party, drove that box to the
courthouse, and that the contents of that box were then left in the courthouse bathroom
where the contraband was discovered. Viewing all of this evidence in the light most
favorable to the guilty verdict, we conclude that a jury could reasonably infer that
Defendant intentionally agreed with others to bring contraband into the jail and that she
acted with the intent to bring contraband into the jail. See State v. Ross, 1974-NMCA-
028, ¶ 13, 

, 

 (recognizing that a conspiracy “may be
established by circumstantial evidence”). Although Defendant presented evidence that
might have supported acquittal, the jury was free to reject her version of the facts. See
State v. Rojo, 

, 

, 

.

{34} We hold that sufficient evidence supports Defendant’s conviction and that double
jeopardy principles do not bar retrial.

CONCLUSION

{35}   We reverse Defendant’s conviction and remand for retrial.

{36}   IT IS SO ORDERED.

ZACHARY A. IVES, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

MICHAEL D. BUSTAMANTE, Judge,
retired, sitting by designation