April 14, 2020- State of New Mexico v. Eliseo Quezada, No. A-1-CA-37188

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37188	4
ELISEO QUEZADA,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	7
William G.W. Shoobridge, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Margaret Crabb, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
Allison H. Jaramillo, Assistant Appellate Defender	15
Santa Fe, NM	16
for Appellant	17
MEMORANDUM OPINION	18
BOGARDUS, Judge.	19
{1} 	Defendant Eliseo Quezada appeals his conviction for petty larceny, contrary	20
to NMSA 1978, Section 30-16-1(A)-(B) (2006), entered after a jury found him guilty	21
of stealing a restaurant’s tip jar. He challenges the conviction on two sufficiency	22
grounds. First, Defendant claims the State did not sufficiently prove an element in	23
Court of Appeals of New Mexico
Filed 4/14/2020 9:55 AM

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the jury instruction, the amount of money in the jar. Second, Defendant claims the	1
State did not sufficiently prove that he was the person who stole the tip jar. We	2
affirm.	3
BACKGROUND	4
{2} 	The theft was recounted by witnesses as follows. A man came into a restaurant	5
in Hobbs, New Mexico during the lunch hour, walked into the bathroom, and	6
moments later left the restaurant. Not long afterward, a man who was wearing some	7
of the same clothes as the man who walked into the bathroom came into the	8
restaurant, took the tip jar from behind the counter, and ran out. Some of the	9
restaurant’s patrons chased after him, but he got away. They saw him leave in a car	10
and saw another car follow his.	11
{3} 	Based on information gathered from witnesses and from surveillance video	12
recordings of the incident, police identified Defendant as the suspect, then arrested	13
and interviewed him. During the interview, Defendant told police he could not	14
remember what he was doing at the time of the theft the day before and blamed the	15
memory lapse on his injury from a car accident.	16
{4} 	The State charged Defendant with armed robbery. At trial, the jury was	17
instructed to find him guilty of the lesser included offense of petty larceny if	18
1. [D]efendant took and carried away the tip jar of money belonging to	19
another, which had an estimated market value of $200[;]	20

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2. 	[a]t 	the 	time 	he 	took 	this 	property, 	[D]efendant 	intended 	to	1
permanently deprive the owner of it; [and]	2
3. [t]his happened in New Mexico on or about the 23rd day of	3
December, 2015.	4
The jury found Defendant guilty of petty larceny.	5
DISCUSSION	6
I. 	The State Did Not Have to Prove That the Estimated Market Value of the	7
Tip Jar Was $200	8
{5} 	Defendant first argues that the State failed to present evidence sufficient for	9
the jury to find part of the first element of the jury instruction: that the tip jar had an	10
estimated market value of $200. Defendant reasons that the only evidence of the	11
amount in the jar, testimony by the restaurant’s owner, was that it had around $150	12
in it. Defendant contends that the testimony could not properly have led the jury to	13
conclude that the amount was $200. To reach that conclusion, Defendant says, the	14
jury would have to improperly speculate.	15
{6} 	Defendant 	premises 	this 	sufficiency 	challenge 	on 	the 	law-of-the-case	16
doctrine. As applicable here, the doctrine provides that the “[j]ury instructions	17
become the law of the case against which the sufficiency of the evidence is to be	18
measured.” 	State v. Jackson, 2018-NMCA-066, ¶ 22, 429 P.3d 674 (internal	19
quotation marks and citation omitted). In other words, Defendant asserts that the	20
jury’s finding of “an estimated market value of $200” was essential to his conviction	21

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and contends that the State was required to put forth evidence sufficiently supporting	1
that finding.	2
{7} 	This is not a circumstance in which the law-of-the-case doctrine applies,	3
however. As the United States Supreme Court has observed, speaking on the	4
presumption of innocence and a defendant’s right to due process, “[the] doctrine	5
does not bear on how to assess a sufficiency challenge when a jury convicts a	6
defendant after being instructed . . . on all charged elements of a crime plus an	7
additional element.” Musacchio v. United States, __ U.S. __, 136 S. Ct. 709, 716	8
(2016).1
9
{8} 	Rather, we are to assess the evidence only to ensure that it sufficiently	10
supports each element of the charged crime, see id. at 715; Carpenter, 2016-NMCA-	11
058, ¶¶ 12-16, or, in a case like this, that crime’s lesser included offense on which	12
the conviction was based, see Carpenter, 2016-NMCA-058, ¶ 16. Here, where the	13
crime charged was armed robbery and the conviction was its lesser included offense,	14
petty larceny, we are concerned only with whether the evidence was sufficient to	15
support each of the elements of petty larceny as defined by Section 30-16-1(A)-(B).	16
1Our courts have embraced the sufficiency-review principles and reasoning
articulated in Musacchio both generally, see State v. Lente, 2019-NMSC-020, ¶¶ 53-
54, 453 P.3d 416, and more particularly, see State v. Carpenter, 2016-NMCA-058,
¶¶ 12-16, 374 P.3d 744.

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{9} 	That requirement is met here. Section 30-16-1(A) defines larceny as “the	1
stealing of anything of value that belongs to another.” When the value of the stolen	2
property is $250 or less, the thief is guilty of a petty misdemeanor. Section 30-16-	3
1(B). The jury instruction, as noted, hinged guilt on the stealing of “the [restaurant’s]	4
tip jar of money.” Assuming the tip jar itself had even nominal worth and there was	5
money in it, as the restaurant owner testified, then the element of the stolen property	6
having a value of $250 or less is satisfied.	7
{10} 	Defendant does not dispute that the jar was stolen or that there was at least	8
some money inside of it. Instead, his argument is focused on the particular amount	9
in the jar. But this was an extraneous element in the jury instruction; all petty larceny	10
requires is that the stolen property have some value. Cf. UJI 14-1601 NMRA use	11
notes 3, 5 (indicating that a jury instruction should not specify the stolen property’s	12
value when the charge is petty larceny). And such extraneous elements, whether	13
legal or factual, cannot serve as the basis of a sufficiency challenge. See Carpenter,	14
2016-NMCA-058, ¶¶ 7, 15-16 (holding that a legal element unnecessary to the jury	15
instruction is not part of the sufficiency measurement); see also State v. Sweat, 2017-	16
NMCA-069, 	¶¶ 31-33, 	404 	P.3d 	20 	(holding 	the 	same, 	but 	concerning 	an	17
unnecessary factual element).	18
{11} 	The same holds true here, where the “estimated market value” element was	19
unnecessary to begin with, it cannot serve as the basis of a sufficiency challenge.	20

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Accordingly, whether the State introduced sufficient evidence to prove that the jar	1
contained around $200 (an extraneous factual element) is irrelevant. Our concern is	2
instead with the evidence tending to prove the elements of petty larceny. The	3
restaurant owner’s testimony that Defendant stole the tip jar containing money was	4
substantial evidence of the elements of that crime.	5
II. 	The State Presented Sufficient Evidence to Support the Jury’s Finding	6
That Defendant Was the Person Who Stole the Tip Jar	7
{12} 	We next consider whether the jury properly found that Defendant was the	8
person who stole the tip jar. Our review of this matter—whether there was sufficient	9
evidence to support this finding—“is an essentially legal endeavor” in which we	10
“address[] whether the government’s case was so lacking that it should not have	11
even been submitted to the jury.” Lente, 2019-NMSC-020, ¶ 54 (internal quotation	12
marks and citation omitted). “[We] consider[] only the legal question whether, after	13
viewing the evidence in the light most favorable to the prosecution, any rational trier	14
of fact could have found the essential elements of the crime beyond a reasonable	15
doubt.” Id. (internal quotation marks and citation omitted). “Our review is limited to	16
ensure that we do not intrude on the jury’s role to resolve conflicts in the testimony,	17
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate	18
facts.” Id. (internal quotation marks and citation omitted).	19
{13} 	Defendant’s contention of insufficient evidence rests solely on his cursory	20
assertions that the items of clothing used to implicate him are “common,” that none	21

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of the witnesses could identify Defendant as the thief, that the license plate number	1
reported as belonging to the getaway car did not exactly match Defendant’s, and that	2
Defendant denied guilt. Such contrary evidence supporting acquittal cannot be relied	3
on for reversal. 	See State v. Galindo, 2018-NMSC-021, ¶ 12, 415 P.3d 494	4
(“Contrary evidence supporting acquittal does not provide a basis for reversal	5
because the jury is free to reject [the d]efendant’s version of the facts.”) (internal	6
quotation marks and citation omitted)).	7
{14} 	We look instead to whether substantial evidence of either a direct or	8
circumstantial nature exists to support Defendant’s guilt beyond a reasonable doubt.	9
See State v. Comitz, 2019-NMSC-011, ¶ 16, 443 P.3d 1130. “Substantial evidence	10
is relevant evidence that a reasonable mind might accept as adequate to support a	11
conclusion.” Id. (internal quotation marks and citation omitted).	12
{15} 	Based on such evidence presented at trial, a rational trier of fact could have	13
found beyond a reasonable doubt that Defendant was the thief. The jury watched and	14
saw stills of the video recording of the theft and the scene shortly before it, in which	15
a man came into the restaurant, entered the bathroom, and then left the restaurant.	16
The State argued that man was Defendant. The jury also saw photographs of the	17
clothing the investigating police found in Defendant’s possession: black shoes, a	18
black leather jacket, a white hooded sweatshirt, and a blue-and-white-striped shirt.	19
The shoes and shirt matched those on the thief, who was also wearing a blue Nike	20

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hooded sweatshirt and blue jeans. Defendant testified to having owned articles by	1
that description at the time of the theft. Meanwhile, the black leather jacket, white	2
hooded sweatshirt, blue-and-white-striped shirt, blue jeans, and black shoes matched	3
those worn by the man who entered the restaurant’s bathroom and left just before	4
the theft. The restaurant owner testified to his belief—and the video and stills	5
strongly suggest—that this man was the thief, and that he had changed into the blue	6
sweatshirt and removed the black jacket before returning to the restaurant to steal	7
the tip jar. Together, these consistencies show identity among the men in both video	8
segments and Defendant.	9
{16} 	In addition to the clothing evidence connecting the thief and Defendant, the	10
jury heard and saw evidence matching the two cars seen driving away from the	11
restaurant with cars associated with Defendant and his girlfriend. Witnesses	12
identified the first getaway car as bluish, with part of its license plate reading NF	13
522, and the second, as a red Mitsubishi Spyder Eclipse. That information led one	14
detective to an apartment, where he spotted a blue Mitsubishi Galant with the license	15
plate NHF 527 and, in it, a blue-and-white striped shirt. The detective waited nearby	16
and eventually saw a red Mitsubishi Spyder Eclipse, driven by Defendant, pull up	17
next to the Galant. Defendant admitted at trial that the Galant was his, and that the	18
Eclipse belonged to his girlfriend’s mother. These consistencies between witnesses’	19
descriptions of the fleeing cars and the cars associated with Defendant and his	20

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girlfriend, along with the presence in Defendant’s car of a shirt matching that worn	1
by the thief, further link Defendant to the crime.	2
{17} 	Given this substantial, circumstantial evidence, a rational trier of fact could	3
conclude beyond a reasonable doubt that Defendant was the thief. Accordingly, the	4
evidence supports his conviction.	5
CONCLUSION	6
{18} 	We affirm.	7
{19} 	IT IS SO ORDERED.	8
_____________________________
KRISTINA BOGARDUS, Judge	9
WE CONCUR:	10
___________________________	11
JULIE J. VARGAS, Judge	12
___________________________	13
JENNIFER L. ATTREP, Judge	14