2019 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 28 - Initiatory Crimes
Section 30-28-2 - Conspiracy.
A. Conspiracy consists of knowingly combining with another for the purpose of committing a felony within or without this state.
B. Whoever commits conspiracy shall be punished as follows:
(1) if the highest crime conspired to be committed is a capital or first degree felony, the person committing such conspiracy is guilty of a second degree felony;
(2) if the highest crime conspired to be committed is a second degree felony, the person committing such conspiracy is guilty of a third degree felony; and
(3) if the highest crime conspired to be committed is a third degree felony or a fourth degree felony, the person committing such conspiracy is guilty of a fourth degree felony.
History: 1953 Comp., § 40A-28-2, enacted by Laws 1963, ch. 303, § 28-2; 1979, ch. 257, § 1.
ANNOTATIONSCross references. — For compounding a crime, see 30-22-6 NMSA 1978.
I. GENERAL CONSIDERATION.
Search of rental vehicle. — A passenger in a rental vehicle who is charged with conspiracy and is not on the rental contract does not have standing to challenge a search of the vehicle. State v. Van Dang, 2005-NMSC-033, 138 N.M. 408, 120 P.3d 830.
Section applicable to crimes within and outside of Criminal Code. — This section applies to conspiracies to commit crimes whether they are contained in the Criminal Code or are found elsewhere in the New Mexico statutes, e.g., securities laws. State v. Shafer, 1985-NMCA-018, 102 N.M. 629, 698 P.2d 902, cert. denied, 102 N.M. 613, 698 P.2d 886.
Conspiracy to commit depraved-mind murder. — This section does not encompass conspiracy to commit depraved-mind murder. State v. Baca, 1997-NMSC-059, 124 N.M. 333, 950 P.2d 776.
Conspiracy to manufacture methamphetamine. — Subsection A of this section does not clearly and unequivocally alert a person to the possibility of prosecution and punishment for conspiracy to manufacture methamphetamine. The court was not persuaded that a defendant-seller shares a purchaser's intent to commit a crime merely because the defendant had knowledge of the purchaser's intended use of those goods or services at the time of the sale. In this context, knowledge of the other's criminal objective is not necessarily equivalent to an intention to bring about the objective. State v. Maldonado, 2005-NMCA-072, 137 N.M. 699, 114 P.3d 379, cert. quashed, 2006-NMCERT-001, 139 N.M. 272, 131 P.3d 659.
Number of criminal conspiracies. — The number of agreements to break the law determines the number of criminal conspiracies subject to prosecution. State v. Sanders, 1994-NMSC-043, 117 N.M. 452, 872 P.2d 870.
Convictions of all conspirators unnecessary. — Although it takes two or more to effect a conspiracy, conviction of all conspirators, or even more than one, is not required and ordinarily, the entry of a nolle prosequi as to other alleged conspirators does not vitiate the conviction of a remaining defendant charged with conspiring with them. State v. Verdugo, 1969-NMSC-008, 79 N.M. 765, 449 P.2d 781.
Fact that co-defendant's substantive crimes dismissed not determinative for conspiracy convictions. — There was sufficient evidence from which the jury could have inferred that defendant had agreed with co-defendant, as a sales representative and later as a sales manager of the condominium project, to sell unregistered securities and to engage in sales practices which had the effect of operating as a fraud upon purchasers. The fact that the substantive crimes of fraudulent practices and the sale or offer to sell unregistered securities as to the co-defendant were dismissed by the trial court is not determinative for the conspiracy convictions. The substantive crimes and the crime of conspiracy are different, and involve separate concepts; and failure to convict on one does not prevent a conviction on the other. State v. Shade, 1986-NMCA-072, 104 N.M. 710, 726 P.2d 864, cert. quashed, 104 N.M. 702, 726 P.2d 856, overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Applicability of Wharton's rule. — Wharton's rule provides that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the particular crime is of such a nature as to necessarily require the participation of two persons for its commission. The conduct involved in a conspiracy to commit trafficking under the Controlled Substances Act (Section 30-31-1 NMSA 1978 et seq.) is not like those offenses to which Wharton's rule traditionally applies and therefore the rule's presumption does not apply to such a conspiracy. State v. Carr, 1981-NMCA-029, 95 N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied, 454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Expansion of Wharton's Rule discouraged. — Where the conspiracy and the substantive offense are the same crime because the concerted action was logically necessary to prove the substantive offense, the multiple punishment, double-description analysis under principles of double jeopardy is the better analysis to be applied, and the future expansion of Wharton's Rule is expressly discouraged. State v. Silvas, 2015-NMSC-006, aff'g 2013-NMCA-093, 310 P.3d 621.
Trafficking controlled substances with intent to distribute and conspiracy based on a single act. — Where defendant was convicted of trafficking a controlled substance by possession with intent to distribute in violation of 30-31-20(A) NMSA 1978, and conspiracy to commit the same crime in violation of this section, both charges based on evidence of a single sale of drugs by defendant; the defendant's conduct underlying both crimes was unitary, and the state relied on the same evidence, the single sale of drugs from defendant to the co-conspirator, as the basis to convict for both crimes; the defendant was convicted twice and is being punished twice for the same offense, resulting in a double jeopardy violation. State v. Silvas, 2015-NMSC-006, aff'g 2013-NMCA-093, 310 P.3d 621.
Wharton's Rule precluded a charge of conspiracy conspiracy to commit trafficking drugs. — Where defendant was convicted for trafficking by possession with intent to distribute methamphetamine and for conspiracy to commit trafficking; the trafficking charge was based on a single sale of methamphetamine by defendant and to defendant's co-conspirator; defendant and the co-conspirator were the only parties involved in the transaction; and the conspiracy charge was based on the same conduct as the trafficking charge, Wharton's Rule precluded the charge of conspiracy. State v. Silvas, 2013-NMCA-093, cert. granted, 2013-NMCERT-009.
Conspiracy not barred by incarceration. — Incarceration may prevent active participation in carrying out some of the acts of a conspiracy; it has no effect whatever in dampening initiatory conspiratorial activity. State v. Gilbert, 1982-NMCA-081, 98 N.M. 77, 644 P.2d 1066.
Conspiracy not susceptible to firearm enhancement. — Since conspiracy is an initiatory crime which involves no physical act other than communication, it is not conceivable how a firearm could be used in the commission of that offense. Accordingly, the crime of conspiracy is not susceptible to firearm enhancement under § 31-18-16 NMSA 1978. State v. Padilla, 1994-NMCA-067, 118 N.M. 189, 879 P.2d 1208.
Derivative liability. — Defendant, as a conspirator, can be guilty of a substantive offense on a theory of derivative liability. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.
Aiding and abetting and conspiracy are distinct and separate concepts. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.
Knowledge essential to aiding and abetting. — One does not become a party to a conspiracy by aiding and abetting it unless one knows of the conspiracy. State v. Dressel, 1973-NMCA-113, 85 N.M. 450, 513 P.2d 187.
Jury question. — When a series of illegal transactions has occurred, the issue of whether there is one conspiracy directed toward several acts or multiple conspiracies is a factual one for the jury. State v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720 P.2d 303, cert. denied, 104 N.M. 201, 718 P.2d 1349.
Sentencing for conspiracy to commit murder. — Conspiracy to commit murder is a felony "resulting in the death of a human being" within the meaning of Section 31-18-15A(2) (now Section 31-18-15A(4)) NMSA 1978. State v. Shije, 1998-NMCA-102, 125 N.M. 581, 964 P.2d 142.
Conspiracy as basis for post-conviction relief. — Where defendant claimed that an assistant district attorney, a state police officer and two other persons violated this section, that this conspiracy was directed against him and that as a result his conviction, judgment and sentence were illegal, but did not allege in what manner the alleged conspiracy affected him, he failed to state a basis for post-conviction relief. State v. Dominguez, 1969-NMCA-045, 80 N.M. 328, 455 P.2d 194.
Unit of prosecution for conspiracy is an agreement. — The unit of prosecution for conspiracy is the agreement to commit crime, not the criminal objectives of the agreement, that is, the individual crimes that the agreement sets out to accomplish. The legislature established a rebuttable presumption that multiple crimes are the object of only one, overarching, conspiratorial agreement subject to one severe punishment set at the highest crime conspired to commit. The totality of the circumstances test is the mechanism to determine the exceptional instances in which the presumption of singularity may be overcome by demonstrating the existence of more than one conspiracy. The factor considered in the totality of circumstances analysis include whether the location of the conspiracies is the same, whether there is a significant degree of temporal overlap between the conspiracies, whether there is an overlap of personnel between the conspiracies, whether overt acts charged and the role played by the defendant in the conspiracies are similar, whether there was a common goal among the conspirators, and whether the agreement contemplated bringing to pass a continuous result that would not continue without the continuous cooperation of the conspirators. State v. Gallegos, 2011-NMSC-027, 149 N.M. 704, 254 P.3d 655.
II. ELEMENTS OF CONSPIRACY.
Conspiracy is defined as a common design or agreement to accomplish an unlawful purpose or a lawful purpose by unlawful means. State v. Chavez, 1983-NMSC-037, 99 N.M. 609, 661 P.2d 887.
Overt act not required. — Section does not require overt act in connection with the conspiracy, as conspiracy in New Mexico is complete when the prohibited agreement is reached. State v. Davis, 1978-NMCA-122, 92 N.M. 341, 587 P.2d 1352, cert. denied, 92 N.M. 353, 588 P.2d 554.
The overt act which constitutes the object of a conspiracy is no part of the crime of conspiracy; an overt act is not required, but the crime is complete when the felonious agreement is reached. State v. Leyba, 1979-NMCA-105, 93 N.M. 366, 600 P.2d 312; State v. Gilbert, 1982-NMCA-081, 98 N.M. 77, 644 P.2d 1066.
Common design is essence of conspiracy. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151; State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561.
Mutually implied understanding is sufficient so far as combination or confederacy is concerned. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561; State v. Davis, 1978-NMCA-122, 92 N.M. 341, 587 P.2d 1352, cert. denied, 92 N.M. 353, 588 P.2d 554.
Common design or mutually implied understanding. — Conspiracy is defined in terms of a common design or mutually implied understanding. State v. Armijo, 1976-NMCA-125, 90 N.M. 10, 558 P.2d 1149.
For a conspiracy to exist there must be a common design or a mutually implied understanding; an agreement. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.
Common design may be established by circumstantial evidence. State v. Davis, 1978-NMCA-122, 92 N.M. 341, 587 P.2d 1352, cert. denied, 92 N.M. 353, 588 P.2d 554.
Formal agreement not necessary. — To establish conspiracy formal agreement need not be proved; a mutually implied understanding is sufficient to establish the conspiracy. State v. Dressel, 1973-NMCA-113, 85 N.M. 450, 513 P.2d 187; State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320, cert. quashed, 96 N.M. 116, 628 P.2d 686.
Knowledge of conspiracy necessary. — One cannot be a party to a conspiracy unless one knows of the conspiracy. State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320, cert. quashed, 96 N.M. 116, 628 P.2d 686.
Mere passive submission or acquiescence of conduct of others insufficient. — To be guilty of conspiracy to shoot from a motor vehicle, there must have been an agreement that one of the parties thereto would shoot a firearm recklessly from the vehicle; the agreement could be explicit or a mutually implied understanding, but mere passive submission or acquiescence in the conduct of others would not suffice. State v. Mariano R., 1997-NMCA-018, 123 N.M. 121, 934 P.2d 315.
It takes at least two persons to effect a conspiracy as the essence of a conspiracy is a common design or agreement to accomplish an unlawful purpose or a lawful purpose by unlawful means. State v. Dressel, 1973-NMCA-113, 85 N.M. 450, 513 P.2d 187; State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320, cert. quashed, 96 N.M. 116, 628 P.2d 686.
Conspiracy as single agreement. — Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.
Mere presence insufficient. — Where there was no evidence that defendant's partner had any knowledge whatsoever of defendant's scheme, even though she was present with him while he was effectuating it, the evidence was insufficient to sustain a conviction for conspiracy. State v. Dressel, 1973-NMCA-113, 85 N.M. 450, 513 P.2d 187.
III. DOUBLE JEOPARDY.
Entailing single punishment. — The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one; thus, where there is only one conspiracy and, therefore, only one conspiracy offense, only a single penalty can be validly imposed. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.
Conspiracy and the completed offense are separate offenses and conviction of both does not amount to double jeopardy. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.
Double jeopardy not bar to conspiracy and substantive crime convictions. — Plea of double jeopardy is no defense to convictions for a substantive offense and a conspiracy to commit that offense. State v. Smith, 1985-NMCA-011, 102 N.M. 512, 697 P.2d 512.
Punishment for both constitutional. — Although defendant had been convicted and was being punished for his conspiracy at the time of his trial, he was not placed in double jeopardy by being convicted and sentenced on the substantive counts. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.
Conspiracy does not arise out of same transaction as shoplifting. — A charge of conspiracy does not arise out of the same transaction which results in an indictment for shoplifting, and thus cannot be dismissed as in violation of a statute prohibiting the charging of separate or additional offense if it arises out of the same transaction, notwithstanding proof of the subsequent shoplifting may also tend to circumstantially prove the conspiracy charge. State v. Leyba, 1979-NMCA-105, 93 N.M. 366, 600 P.2d 312.
Two distinct crimes shown. — Evidence that a conspiracy to commit burglary was entered on the evening of November 16th, that the conspirators unsuccessfully attempted to carry out the conspiracy at 10:30 p.m. of that day, and that the burglary was performed between 9:00 and 9:30 a.m. of November 17th, showed two distinct crimes, and there was no factual basis for the contention that they were either the same or so similar that multiple convictions were prohibited. State v. Watkins, 1975-NMCA-126, 88 N.M. 561, 543 P.2d 1189, cert. denied, 89 N.M. 6, 546 P.2d 71.
Convictions for trafficking controlled substances with intent to distribute and conspiracy based on a single act. — Where defendant was convicted of trafficking a controlled substance by possession with intent to distribute in violation of 30-31-20(A) NMSA 1978 and conspiracy to commit the same crime in violation of this section, both charges based on evidence of a single sale of drugs by defendant; the defendant's conduct underlying both crimes was unitary, and the state relied on the same evidence, the single sale of drugs from defendant to the co-conspirator, as the basis to convict for both crimes; the defendant was convicted twice and is being punished twice for the same offense, resulting in a double jeopardy violation. State v. Silvas, 2015-NMSC-006, aff'g 2013-NMCA-093, 310 P.3d 621.
Two convictions for one conspiracy unconstitutional. — Because the defendant robbed two different victims but only one conspiracy to commit the robberies existed, it was a violation of double jeopardy to convict the defendant for two conspiracies, as he was punished twice for the same offense. State v. Jackson, 1993-NMCA-092, 116 N.M. 130, 860 P.2d 772, cert. denied, 115 N.M. 795, 858 P.2d 1274.
Rebuttable presumption that multiple crimes are the object of only one overarching conspiratorial agreement. — Where the jury returned four conspiracy convictions against defendant arising from one shooting, conspiracy to commit aggravated battery (great bodily harm), conspiracy to commit aggravated battery (deadly weapon), conspiracy to commit aggravated assault and conspiracy to commit shooting at a dwelling, the state failed to overcome the presumption of a single overarching conspiratorial agreement where the evidence established that the location and time of the alleged conspiracies were the same, the personnel involved in the several charged conspiracies were the same, and defendant's role in the several charged conspiracies was the same. Defendant's multiple conspiracy convictions violated double jeopardy. State v. Comitz, 2019-NMSC-011.
Rebuttable presumption of one conspiratorial agreement. — Where defendant was found guilty of conspiracy to commit criminal sexual penetration (CSPM) of a minor, conspiracy to commit kidnapping, conspiracy to commit intimidation or threatening a witness, and conspiracy to commit bribery of a witness, and where the evidence established that the conspiracy convictions involved the same victim and the same perpetrators, and occurred in the same location during the same time period, without any intervening events, the state did not present any evidence to overcome the presumption of singularity. Moreover, the actions of defendant and defendant's son were aimed at furthering a single goal or purpose, facilitating the commission of CSPM upon the victim. State v. Garcia, 2019-NMCA-056, cert. denied.
Conviction for multiple conspiracies violated double jeopardy. — Where defendant and another assailant broke into the home of the victim armed with metal bars or bats and defendant struck victim with a metal bar, there was only one conspiracy to commit multiple crimes and defendant's conviction of the lesser conspiracy to commit aggravated battery violated double jeopardy. State v. Trujillo, 2012-NMCA-112, 289 P.3d 238, cert. granted, 2012-NMCERT-011.
Where, following a fight at a bar between the victim and a conspirator, defendant and a conspirator assaulted the victim at a conspirator's residence and tied the victim up; defendant guarded the victim with a knife; another conspirator gave the victim an overdose of heroin; defendant and conspirators carried the victim to the victim's car and drove the car to a church; the victim was still alive; defendant tried three times to snap the victim's neck, a conspirator tried to suffocate the victim with a plastic bag, and defendant tried to strangle the victim with the victim's shoelaces; defendant and the conspirators left the church and after consulting with other conspirators, returned to the church and set the victim and the victim's car on fire; defendant and other conspirators went to the residence of a conspirator with whom the victim had the bar fight and the conspirator paid fifty dollars to each conspirator; the entire sequence of events from the bar fight to the arson of the victim's car occurred within an eight hour period; during that time, the conspirators exchanged numerous phone calls; and defendant was convicted of conspiracies to commit kidnapping, first degree murder, and aggravated arson, defendant entered into only one agreement and took part in only one conspiracy and the court vacated defendant's convictions of conspiracy to commit kidnapping and arson. State v. Gallegos, 2011-NMSC-027, 149 N.M. 704, 254 P.3d 655.
IV. EVIDENCE AND PROOF.
A. IN GENERAL.
Traffic in drugs in a drug-free school zone. — To convict a defendant of conspiracy to traffic drugs in a drug-free school zone, the state must prove that the defendant had knowledge that the transaction was occurring within a drug-free school zone. State v. Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, cert. denied, 2010-NMCERT-001, 147 N.M. 673, 227 P.3d 1055.
Other evidence. — While common design is the essence of a conspiracy, this fact may be established by evidence other than that the parties came together and actually agreed upon a method of operation for the accomplishment of the offense. State v. Deaton, 1964-NMSC-062, 74 N.M. 87, 390 P.2d 966.
Laying foundation for testimony. — When a sufficient foundation is laid by the evidence to establish the existence of a conspiracy, the acts and declarations of coconspirators in pursuance of the common purpose are admissible, whether conspiracy is directly charged or not. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561.
Out-of-court statements made by a coconspirator about matters relating to the conspiracy are not admissible unless and until a prima facie case of conspiracy is shown by other independent evidence. State v. Harge, 1979-NMCA-120, 94 N.M. 11, 606 P.2d 1105, overruled on other grounds by State v. Penner, 1983-NMCA-116, 100 N.M. 377, 671 P.2d 38.
Order of proof not dispositive. — The trial court has wide discretion in supervising the order of proof in a conspiracy case, and hence regardless of whether acts and declarations of one coconspirator were admitted prior to prima facie proof of a conspiracy, the dispositive issue was whether there was prima facie proof of a conspiracy apart from those acts and declarations, that is, evidence sufficient to make a prima facie case which would support a finding. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.
Presenting co-defendant's guilty plea in defendant's conspiracy trial. — The fact that a co-defendant has pled guilty to conspiracy to commit murder, presented to the jury in a case involving the defendant's conspiracy, does not come within Rule 803(22), N.M.R. Evid. (now see Paragraph V of Rule 11-803 NMRA), and is hearsay. State v. Urioste, 1980-NMCA-103, 94 N.M. 767, 617 P.2d 156, cert. denied, 94 N.M. 806, 617 P.2d 1321.
B. CIRCUMSTANTIAL EVIDENCE.
Conspiracy proved by inference. — Conspiracy consists of knowingly combining with another for the purpose of committing a felony within or without this state. Direct evidence of an overt act is not required and the crime of conspiracy is complete when the felonious agreement is reached. The agreement may be inferred from statements relating circumstances from which the jury could infer that defendant had agreed to act with another. State v. Gonzales, 2008-NMCA-146, 145 N.M. 110, 194 P.3d 725, cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488; State v. Lopez, 2007-NMSC-049, 142 N.M. 613, 168 P.3d 743; State v. Walters, 2007-NMSC-050, 142 N.M. 644, 168 P.3d 1068.
Established through circumstantial evidence. — A conspiracy may be established by circumstantial evidence, the agreement being a matter of inference from the facts and circumstances, which, considered as a whole, show the parties united to accomplish the fraudulent scheme. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.
Whether the defendant combined with another for an unlawful purpose may be shown by circumstantial evidence or by a showing that evidence exists from which reasonable inferences may be drawn supporting the existence of a conspiracy as shown from the facts and circumstances. In re Ruben O., 1995-NMCA-051, 120 N.M. 160, 899 P.2d 603, cert. denied, 120 N.M. 68, 898 P.2d 120.
Circumstantial evidence for fact of inception of common design. — Question of when conspirators began to act in pursuance of a common design is ordinarily not the subject of direct proof; circumstances must be relied on to establish the fact. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561.
Agreement a matter of inference. — A mutually implied understanding is sufficient so far as combination or confederacy is concerned, which agreement is generally a matter of inference deduced from the facts and circumstances, and from the acts of the person accused done in pursuance of an apparent criminal purpose. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151; State v. Deaton, 1964-NMSC-062, 74 N.M. 87, 390 P.2d 966.
Inference of conspiracy. — Conspiracy is seldom susceptible of direct proof and is usually established by inference from the conduct of the parties. State v. Dressel, 1973-NMCA-113, 85 N.M. 450, 513 P.2d 187; State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320, cert. quashed, 96 N.M. 116, 628 P.2d 686.
C. ACTS OF CONSPIRATORS.
Acts and declarations of coconspirators may be admitted into evidence whether or not conspiracy is directly charged. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.
Acts made during existence of conspiracy. — The acts and declarations of a conspirator to be admissible against his coconspirator must occur during the existence of the conspiracy. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561.
Act made prior to consummation of crime. — A conspirator may testify to acts done or statements made by a coconspirator from the commencement to the consummation of the offense. State v. Robinson, 1972-NMCA-080, 84 N.M. 2, 498 P.2d 694.
Acts made prior to abandonment. — Rule that statements of a conspirator made after abandonment of the conspiracy or after it has terminated without accomplishing its object are inadmissible as against a co-conspirator, refers to those statements originally made among conspirators, and not the testimony given at trial about those statements. State v. Robinson, 1972-NMCA-080, 84 N.M. 2, 498 P.2d 694.
Acts prior to inception of conspiracy. — While the acts and declarations of one conspirator during the existence of a conspiracy are competent evidence against his coconspirators, no act or declaration made before the inception of the conspiracy may be binding, or given in evidence against the coconspirator on trial. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561.
D. SUFFICIENCY OF EVIDENCE.
Conspiracy to manufacture methamphetamine. — Where the evidence showed that defendant and others went into a store to purchase Sudafed for methamphetamine, that each person went into the store separately in order to purchase a larger quantity of Sudafed, that Sudafed was used in the manufacture of methamphetamine, and that defendant actually manufactured methamphetamine on the day after the trip to the store to purchase the Sudafed, the jury could reasonably conclude that defendant conspired to manufacture methamphetamine. State v. Brown, 2010-NMCA-079, 148 N.M. 888, 242 P.3d 455, cert. denied, 2010-NMCERT-007, 148 N.M. 611, 241 P.3d 612.
Conspiracy to intimidate a witness. — Evidence that defendant agreed with an accused murderer to appear in court to shake up an eye witness to the murder and make him afraid to testify truthfully or to have a lapse of memory in the murder trial and to otherwise attempt to make sure that the witness refrained from testifying in a manner that would harm the accused murderer, was sufficient to support the conviction of defendant for conspiracy to intimidate a witness. State v. Martinez, 2008-NMCA-019, 143 N.M. 428, 176 P.3d 1160, cert. denied, 2008-NMCERT-001, 143 N.M. 397, 176 P.3d 1129.
Conspiracy to commit kidnapping. — Evidence that defendants, following an argument with the victims about missing drugs, made the victims strip to their underwear and sit on a couch, that one defendant held a knife to the throat of one victim, that defendants searched victims' clothes for the missing drugs, and that defendants removed money and identification from the victims' clothes, was sufficient to support an inference that the defendants worked together to confine the victims in the apartment and was sufficient to support the convictions for conspiracy to commit kidnapping. State v. Herrera, 2015-NMCA-116, cert. denied, 2015-NMCERT-010.
Conspiracy to commit forgery. — In defendant's trial for forgery, where the evidence established beyond a reasonable doubt that four personal checks belonging to four different people were washed and passed at four different times, and where there was testimony that defendant had entered into an agreement with others to change genuine checks so that their effect was different from the original, there was sufficient evidence to prove beyond a reasonable doubt that defendant committed conspiracy to commit forgery. State v. Estrada, 2016-NMCA-066, cert. denied.
Sufficient evidence of conspiracy to commit first-degree murder. — Where defendant was convicted of conspiracy to commit first-degree murder, and where the state presented evidence at trial that defendant spent the day before the murder with another man who had a motive to kill the victim, that defendant secured for himself and the other man a ride to the apartment complex where the victim lived, that defendant and the other man disappeared from sight before gunshots were heard, that defendant and the other man were seen running back to their vehicle before driving off, and that occupants of the vehicle testified that defendant smelled like burnt matches, which is similar to the smell of gunpowder, there was sufficient evidence for a reasonable jury to find that defendant was part of an agreement with one or more to murder the victim. State v. Torres, 2018-NMSC-013.
Evidence sufficient. — Where defendant's primary co-conspirator beat, drugged, and tied the victim to a bed in defendant's residence; defendant did not object to the treatment of the victim; while the primary co-conspirator was absent from the residence for a lengthy period of time, defendant watched the victim and did not assist the victim or call the police; defendant did not object when the primary co-conspirator expressed an intention to kill the victim and burn the victim's car; defendant purchased charcoal liter fluid at the direction of the primary co-conspirator; defendant did not object when defendant's co-conspirators put the victim in the trunk of the victim's car; and while defendant remained at the residence, defendant's co-conspirators used the liter fluid to burn the car and kill the victim, there was sufficient evidence to convict defendant of conspiracy to commit kidnapping. State v. Bahney, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003.
Where defendant's friends asked defendant for a ride from a party; one of the friends suggested that they go "do some shootings"; defendant agreed to the plan and drove to the location of a trailer selected by the friend; the friend exited defendant's vehicle and fired three shots at the trailer; the owner of the trailer had recently moved from the trailer, but kept some possessions in the trailer and parked two vehicles in front of the trailer; and defendant claimed that defendant had no reason to know that the trailer was occupied at the time of the shooting, the evidence was sufficient to prove that defendant had the requisite intent to agree and the intent to commit shooting at a dwelling. State v. Coleman, 2011-NMCA-087, 150 N.M. 622, 264 P.3d 523, cert. denied, 2011-NMCERT-008, 268 P.3d 513.
Where there was evidence that defendant or accomplice or both assaulted victim and split the money taken from the victim, this is sufficient evidence for the conviction of conspiracy to commit a robbery. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled on other grounds, State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.
The size, frequency and manner of the transactions were evidence sustaining defendant's conviction for conspiracy with two others to traffic in heroin. State v. Armijo, 1976-NMCA-125, 90 N.M. 10, 558 P.2d 1149.
Review of the record indicates the existence of substantial evidence to support the jury verdicts for conspiracy to commit fraud, and the evidence was such that the jury could reasonably determine that defendants knowingly committed the offense of conspiracy to commit fraud upon the district and state in excess of $20,000. State v. Crews, 1989-NMCA-088, 110 N.M. 723, 799 P.2d 592, cert. denied, 109 N.M. 232, 784 P.2d 419.
Series of agreements. — The evidence was sufficient to convict defendant of separate counts of conspiracy to commit murder, kidnapping and armed robbery, where the evidence in the light most favorable to the state showed a distinct agreement to commit each crime. State v. Reyes, 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948.
Tampering with evidence. — Where there is no evidence suggesting that defendant encouraged his accomplice to dispose of the gun or was present when the accomplice threw it away, there was insufficient evidence to support defendant's convictions for tampering with evidence and conspiracy to tamper with evidence. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114..
Sufficient evidence. — Defendant's appearance along with several other people in a hardware store's surveillance footage showing burglaries was sufficient circumstantial evidence to show that defendant had agreed with at least one of the other people to commit the burglaries to support defendant's conviction for conspiracy to commit burglary. State v. Gonzales, 2008-NMCA-146, 145 N.M. 110, 194 P.3d 725, cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488.
There was sufficient evidence to support defendant's conviction for conspiracy to commit first-degree murder where defendant testified that defendant incapacitated one of the occupants of a cabin while defendant's companions murdered and robbed the other occupants of the cabin. State v. Nieto, 2000-NMSC-031, 129 N.M. 688, 12 P.3d 442.
Sufficient evidence of underlying crime(s). — Where the jury must determine which of two underlying crimes is supported by evidence, as opposed to determining the legality or constitutionality of the underlying crimes, a conviction for conspiracy will be upheld, notwithstanding that one of the underlying crimes may not have been supported by sufficient evidence. State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.
Evidence found sufficient for conviction. State v. Bankert, 1994-NMSC-052, 117 N.M. 614, 875 P.2d 370; State v. Sellers, 1994-NMCA-053, 117 N.M. 644, 875 P.2d 400, cert. denied, 118 N.M. 90, 879 P.2d 91; State v. Hernandez, 1997-NMCA-006, 122 N.M. 809, 932 P.2d 499.
Evidence was insufficient to support verdict of conspiracy to commit trafficking by manufacture where the evidence established that there was a meth lab in the kitchen of defendant's friend's trailer and additional meth lab equipment in a bedroom; that defendant was present in the trailer, hiding in a closet in a different bedroom when the meth lab was discovered; and that both defendant and his friend were present in the trailer when the meth lab was discovered because the evidence did not lead to an inference that defendant had an agreement with friend to commit the offense of trafficking by manufacture. State v. Stefani, 2006-NMCA-073, 139 N.M. 719, 137 P.3d 659, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278.
Evidence that defendant used his truck to block the victim from leaving defendant's property; that defendant told the other defendants involved in the beating of the victim by telephone to "hurry up" because defendant did not know how long he could hold the victim; that when the other defendants arrived, the defendant became involved in the beating of the victim, permitted the jury to conclude that the defendants shared an intent to hold the victim and then beat him. State v. Huber, 2006-NMCA-087, 140 N.M. 147, 140 P.3d 1096, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142 P.3d 360.
V. INDICTMENT AND INFORMATION.
Sufficiency of indictment. — An indictment for conspiracy to commit perjury did not need to specify the perjury defendant allegedly conspired to commit because the offense of conspiracy was complete when the agreement was reached. State v. Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234, aff'd in part, 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274.
Charging in alternative. — Where defendant was charged under two counts enveloping a single conspiracy which violated two statutes, the trial court did not err in refusing to dismiss either count as duplicitous, as although there was only one conspiracy, the two counts alternatively charged the single conspiracy. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.
Where the conspiracy to burglarize and vandalize an insured business involved acts not covered by the arson statute (Section 30-17-5 NMSA 1978), that section was not a special provision prohibiting the prosecution of defendant under Section 30-15-3 NMSA 1978 relating to damaging insured property, for the aspect of the conspiracy directed toward burglary and vandalism. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.
Law reviews. — For note, "Criminal Law - The Use of Transferred Intent in Attempted Murder, a Specific Intent Crime: State v. Gillette," see 17 N.M.L. Rev. 189 (1987).
For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 16 Am. Jur. 2d Conspiracy §§ 1 to 11.
Right of accused to bill of particulars, 5 A.L.R.2d 444.
Joint liability for slander, 26 A.L.R.2d 1031.
Liability for procuring breach of contract, 26 A.L.R.2d 1227, 96 A.L.R.3d 1294, 44 A.L.R.4th 1078.
Conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.
Limitation of actions: when does statute of limitations begin to run against civil action or criminal prosecution for conspiracy, 62 A.L.R.2d 1369.
Gambling, criminal conspiracies as to, 91 A.L.R.2d 1148.
Admissibility of statements of coconspirators made after termination of conspiracy and outside accused's presence, 4 A.L.R.3d 671.
Jurisdiction to prosecute conspirator who is not in state at time of substantive criminal act, for offense committed pursuant to conspiracy, 5 A.L.R.3d 887.
False testimony: actionability of conspiracy to give or procure false testimony or other evidence, 31 A.L.R.3d 1423.
Impossibility: comment note on impossibility of consummation of substantive crime as defense in criminal prosecution for conspiracy or attempt to commit crime, 37 A.L.R.3d 375.
Spouses, criminal conspiracy between, 74 A.L.R.3d 838.
Entrapment: availability of defense of entrapment where one accused of conspiracy denies participation in offense, 5 A.L.R.4th 1128.
Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators, 19 A.L.R.4th 192.
Federal criminal liability of narcotics conspirator for different substantive crime of other conspirator, 77 A.L.R. Fed. 661.
When is conspiracy continuing offense for purposes of statute of limitations under 18 USCS § 3282, 109 A.L.R. Fed. 616.
