June 30, 2015 – State of New Mexico v. Patricia Garcia, No. 33,249

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: June 30, 2015

NO. 33,249

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

PATRICIA GARCIA,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Daniel Viramontes, District Judge

Hector H. Balderas, Attomey General
Paula E. Ganz, Assistant Attomey General
Santa Fe, NM

for Appellee

McGraw & Strickland, LLC
Margaret Strickland

Las Cruces, NM

for Appellant

OPINION
GARCIA, Judge.
{1} 	A jury found Defendant Patricia Garcia guilty of two second degree felonies,
fraud, in violation of NMSA 1978, § 30-16-6(A), (F) (2006), and computer access
with intent to defraud, in violation of NMSA 1978, § 30-45-3(E) (2006). On appeal,
Defendant argues, among other things, that there was insufficient evidence presented
to establish that the alleged victim, Page Kent, relied on her misrepresentations about
her marital status. We agree that this was a critical issue regarding the fraud
allegations filed by the State. The State did not ask Mr. Kent to testify about the
reliance element of the fraud charge during Mr. Kent’s testimony at trial. Instead, it
attempted to establish the element of reliance by inferences from the other evidence
presented. We hold that the other evidence was insufficient to permit an inference
establishing reliance beyond a reasonable doubt. As a result, we reverse both of
Defendant’s convictions.
BACKGROUND
{2} 	The following facts relevant to the issue we address on appeal were adduced at
trial. Defendant, a woman in her fifties, and Mr. Kent, a recently widowed man in his
mid-eighties, first met at the post office around May 2010. At this first meeting,
Defendant told Mr. Kent that she was not married and that she had been divorced

2
several times. She asked Mr. Kent for $5,000 to “have her breast work raised[,]” and
Mr. Kent wrote her a check for $5,000.
{3} 	After this first meeting, Defendant and Mr. Kent “became friends.” Defendant
took Mr. Kent to his medical appointments and helped him with his personal finances.
“After a while,” Defendant asked Mr. Kent if she could use his bank account to help
her pay for her “children’s education[,]” “everyday things, . . . cars[,]” and to “help
[her children’s] way of life.” Defendant told Mr. Kent that she would “replace what
she took.” Mr. Kent agreed, and Defendant began accessing and transferring money
from Mr. Kent’s accounts to her own account in October 2010.
{4} 	On December 15, 2010, and January 4, 2011, Mr. Kent made Defendant a joint
owner on his accounts. When the prosecutor asked Mr. Kent at trial “what caused”
him to make Defendant a joint owner on his accounts, Mr. Kent replied that he did so
because Defendant told him “it would be easier for her and her bookkeeping and also
the contact with money and then she would replace it.” On cross-examination, Mr.
Kent also stated that he put Defendant on his accounts because he “wanted to help her
out” with “her family, . . . her children, and . . . other things.” A New Mexico Adult
Protective Services Department caseworker who had interviewed Mr. Kent testified
at trial that Mr. Kent told her that he allowed Defendant to use his accounts because
“he felt sorry for [Defendant] and that he was helping her.”

3
{5} 	Mr. Kent allowed Defendant to use his accounts “as she needed[,]” and
although he did not tell her she could use his money “carte blanche,” he did not
expressly limit her spending. Mr. Kent allowed Defendant to access his accounts over
the computer.
{6} 	On January 20, 2011—a few months after Defendant began using Mr. Kent’s
accounts and about one month after Mr. Kent made Defendant a joint owner on his
accounts—Defendant married a man named Jerry Marquez, whom she divorced about
a year later on February 12, 2012. Defendant never told Mr. Kent that she had gotten
married, that she was romantically involved with anyone prior to this marriage, or that
Mr. Marquez was more than a “friend.” Indeed, when Defendant arranged to have Mr.
Marquez work on Mr. Kent’s roof in May 2011, Defendant lied when she introduced
Mr. Marquez to Mr. Kent as her “gay friend” because she was married to Mr. Marquez
at that time. The prosecutor asked Mr. Kent at trial, “When you put [Defendant] on
your accounts, did you know that you were putting a married woman on your bank
accounts?” Mr. Kent replied, “It was impossible because I didn’t know it.”
{7} 	In May 2011, representatives from Mr. Kent’s bank and a caseworker from the
New Mexico Adult Protective Services Department approached Mr. Kent about their
concerns with Mr. Kent’s dwindling bank accounts. Mr. Kent then stopped Defendant
from accessing his accounts when he discovered that his “money was going down,

4
down, down,” and he wanted to “curtail the action” on his accounts. However, after
Mr. Kent and Defendant “talked about it” and Defendant agreed to “slow down on it,”
Mr. Kent resumed allowing Defendant to access his accounts, but he did not make her
a joint owner of his accounts again. Instead, in October 2011, Mr. Kent named
Defendant the beneficiary of his accounts, which meant only that the money in Mr.
Kent’s accounts would have gone to Defendant upon Mr. Kent’s death. Although
Defendant’s use of Mr. Kent’s accounts “quieted down a little bit[,]” it eventually
“went back to the same old way.” The money in Mr. Kent’s accounts “went down
again” and Defendant “didn’t respect it[.]”
{8} 	Mr. Marquez testified that sometime in January 2012 he told Mr. Kent that he
was married to Defendant and that Mr. Kent “was shocked.” However, when the
prosecutor asked Mr. Kent how he learned that Defendant was married, Mr. Kent
replied, “Well, it wasn’t [Mr. Marquez].” The last time that Defendant took money
from Mr. Kent’s accounts was on February 14, 2012. On February 18, 2012, Mr. Kent
removed Defendant as the beneficiary of his accounts.
{9} 	The prosecutor asked Mr. Kent at trial, “What caused you to finally take
[Defendant] off your accounts permanently?” Mr. Kent replied, “The bank—they kept
hounding me, ‘You have problems Mr. Kent,’ . . . and my money in the bank . . . was
down.” Mr. Kent also testified that after “the sheriff’s representatives came out and

5
talked” to him is “when things started with [his] degeneration of [his] . . . contact with
[Defendant].” He said that he “ended up taking her name off of everything” because
he “finally woke up to see what was really happening to [his] money,” and that “after
a while it got so bad . . . [he] had to stop it.” When defense counsel asked Mr. Kent
why, other than the first time he met Defendant, he did not ask Defendant any details
about her personal romantic life over the course of their friendship, Mr. Kent replied
that such details were “pertinent, very pertinent now, but I didn’t even think of it
‘cause she said she was not [married].”
{10} 	On February 21, 2012, Mr. Kent filed a fraud complaint with his bank. At some
point, Mr. Kent and a friend of his notified the police.
{11} 	At trial, the prosecutor repeatedly asked Mr. Kent to elaborate on the nature of
his relationship with Defendant and how Mr. Kent viewed this relationship. Mr. Kent
repeatedly replied that he and Defendant were friends, even though he admitted to
having had a romantic interest in her that “meant more” than the interest that
Defendant had in him:
[PROSECUTOR:] 	After you met [Defendant], what type of
things would you do together?
[MR. KENT:] 	Oh my, let’s see. We became friends and she
. . . said, ‘From now on I will take you to all

6
the hospitals you have to go to or doctors,’
and that was kinda the starter. And she did.
And we just had a pleasant relationship.
. . . .
[PROSECUTOR:] 	What else did you and her do? What other
kind of activities?
[MR. KENT:] 	Not much, really.
[PROSECUTOR:] 	What would you talk about? What kinds of
things would you and her talk about?
[MR. KENT:] 	[Laughs]
[PROSECUTOR:] 	What did you have in common? I guess that’s
a way of putting it. What did you and her have
in common that you liked to talk about?
[MR. KENT:] 	I guess, cars [laughs].
[PROSECUTOR:] 	What was the friendship based upon? . . .
What type of conversation would she have
with you, Mr. Kent? What sort of subjects
would she bring up and talk about with you?
[MR. KENT:] 	I guess, after a year or so we kind of looked a
little closer to ourselves and we just liked each
other.
[PROSECUTOR:] 	How did you come to think of [Defendant]
after a time? You said you were friends, but
after a while how did you come to think of
her? What did you think of her in your mind
as the relationship that you had with her after
a while?

7
. . . .
[MR. KENT:] 	It was nice. Pleasant.
[PROSECUTOR:] 	Okay, but how would you describe her? What
have you described her as in the past to people
when you were . . . getting along with her
quite well? How had you described her to
other people? As your what?
[MR. KENT:] 	I guess, my friend. And my [pauses]—
[PROSECUTOR:] 	Your what?
[MR. KENT:] 	My friend, and uh, how will I say it—
[PROSECUTOR:] 	What are you trying to say?
[MR. KENT:] 	I’m trying to say that she meant more to me
than what I thought.
[PROSECUTOR:] 	When you say meant more to you though, in
what regard? Meant more to you in what way?
‘Cause we have friends, you know, I mean,
some people I might just consider a friend,
like an acquaintance or someone that I might
just see on the street and talk to. Is that all that
it was with [Defendant] in your mind?
[MR. KENT:] 	No.
. . . .
[PROSECUTOR:] 	So, Mr. Kent, let me be just very blunt. Did
you have a romantic interest in [Defendant] at
some point?
[MR. KENT:] 	Yes.

8
[PROSECUTOR:] 	So then in some ways you told people that you
regarded her as what to you?
[MR. KENT:] 	As my close friend, and I wouldn’t say quite
a lover ‘cause I’m eighty-six, eighty-seven
years old. But it was very nice and also . . . we
were both content.
Although Mr. Kent did not testify that he thought of Defendant as his romantic
partner, the caseworker testified that Defendant knew that Mr. Kent thought of
Defendant as his “girlfriend.”
{12} 	The prosecutor did not ask Mr. Kent any questions about whether he relied on
his impression that Defendant was not dating or married to anyone during the time
that he allowed Defendant access to his bank accounts. The prosecutor did not ask Mr.
Kent if he gave Defendant access to his accounts because he thought of her as his
romantic partner. Furthermore, on cross-examination, when defense counsel asked Mr.
Kent whether he had been “tricked” into giving Defendant access to his account, Mr.
Kent replied that he had not:
[DEFENSE COUNSEL:] 	You . . . granted [Defendant] access to
that account, right?
[MR. KENT:] 	Yes.
[DEFENSE COUNSEL:] 	Nobody 	tricked 	you, 	nobody did
anything to try and take advantage of
you. . . . You did it freely and willingly,
correct?

1The prosecutor also asserted in his closing argument that Defendant’s asking Mr.
Kent for $5,000 for breast surgery upon their first meeting in May 2010, and then not
having the surgery, was the first instance of fraud. However, the jury instructions and
Defendant’s resultant conviction covered conduct occurring only between the dates
of October 10, 2010, and February 13, 2012. We assume this is why the State did not
raise this issue in its answer brief. The State confirmed at oral argument that
Defendant’s May 2010 conduct should not be considered in upholding her fraud
conviction.
9
[MR. KENT:] 	Right.
{13} 	In his closing argument, the prosecutor asserted:
[I]t’s hard for [Mr. Kent] to come out and say he thought that
[Defendant] . . . was his girlfriend, but that’s what he thought about her,
that’s how he thought of her, and she encouraged it. . . . by lying to Mr.
Kent about who her husband was. . . . [and] she didn’t think that way
about him. 1
DISCUSSION
{14} 	The narrow question we must answer in this appeal is whether there was
sufficient evidence presented to establish beyond a reasonable doubt that Mr. Kent
relied on Defendant’s deception about her relationship and marriage status when he
allowed Defendant to use his money and access his accounts. For reasons we explain
below, we conclude that the evidence was insufficient.
A. 	Elements of Criminal Fraud
{15} 	The crime of “[f]raud consists of the intentional misappropriation or taking of
anything of value that belongs to another by means of fraudulent conduct, practices

10
or representations.” Section 30-16-6(A). A misrepresentation for purposes of criminal
fraud may include a deceptive silence or omission. See State v. Stettheimer, 1980-
NMCA-023, ¶¶ 9-14, 94 N.M. 149, 607 P.2d 1167. As contained within our uniform
jury instructions and the jury instructions used in this trial, the state must also present
evidence sufficient to prove that “[b]ecause of the . . . victim[’s] reliance on [the
misrepresentation], the] defendant obtained [a thing of value].” UJI 14-1640 NMRA
(emphasis added).
{16} 	A critical inquiry in this appeal is what constitutes reliance. Although the jury
in this case was not instructed about how to determine whether Mr. Kent’s reliance
on Defendant’s misrepresentation caused Mr. Kent to allow Defendant to access his
accounts, we find it helpful to refer to UJI 14-134 NMRA in interpreting the legal
requirements under which the element of reliance must be proved in a criminal trial
for fraud. Although not used in this trial, UJI 14-134 is a criminal uniform jury
instruction that “should be used in cases [other than homicide] in which causation is
an issue.” UJI 14-134 n.1 (emphasis added). UJI 14-134 provides, in pertinent part:
In addition to the other elements of the crime . . . , the state must also
prove . . . beyond a reasonable doubt that[] . . . [t]he act of the defendant
was a significant cause of the injury or harm. The defendant’s act was a
significant cause of the injury or harm if it was an act which, in a natural
and continuous chain of events, uninterrupted by an outside event,
resulted in the injury or harm and without which the injury or harm
would not have occurred. (Emphasis added.)

11
Thus, to sustain a fraud conviction, we conclude that the State must prove beyond a
reasonable doubt that without the defendant’s misrepresentation, the defendant would
not have obtained the thing of value. Id.; accord State v. Young, 1998 ME 107, ¶ 14,
711 A.2d 134, 137 (referring to the Maine Criminal Code’s definition of causation in
determining the nature of the causal relationship that must be proved in a theft by
deception prosecution and framing the issue as whether the defendant “would not have
obtained the money but for his deceptive act”); 3 Charles E. Torcia, Wharton’s
Criminal Law § 427 (15th ed. 1995) (stating that, in proving a defendant obtained
money or property by false pretenses, it is not “necessary . . . that the false
representation be the paramount cause for the victim’s surrender of his property; it is
sufficient merely that the false representation be a cause without which the victim
would not have surrendered his property” (emphasis added)).
B. 	Standard of Review and General Principles
{17} 	In conducting a sufficiency-of-the-evidence analysis, we review the evidence
in the light most favorable to the verdict “to determine whether substantial evidence
of either a direct or circumstantial nature exists to support a verdict of guilty beyond
a reasonable doubt with respect to every element essential to [the] conviction.” State
v. Hornbeck, 2008-NMCA-039, ¶ 33, 143 N.M. 562, 178 P.3d 847 (internal quotation
marks and citation omitted). “We do not re-weigh the evidence or substitute our

12
judgment for that of the fact-finder, so long as sufficient evidence supports the
verdict.” Id. We remain mindful, however, that “evidence that is sufficient to allow
a rational juror to make a finding adverse to a defendant under a lesser preponderance-
of-the-evidence standard [of proof] will not necessarily suffice to allow a rational
factfinder to reach the subjective state of certitude required by the beyond-a-
reasonable-doubt standard.” State v. Garcia, 2004-NMCA-066, ¶ 9, 135 N.M. 595,
92 P.3d 41, rev’d in part on other grounds by State v. Garcia, 2005-NMSC-017, 138
N.M. 1, 116 P.3d 72. “[E]vidence equally consistent with two inferences does not,
without more, provide a basis for adopting either one—especially beyond a reasonable
doubt.” Garcia, 2005-NMSC-017, ¶ 12 (internal quotation marks and citation
omitted); see also Baca v. Bueno Foods, 1988-NMCA-112, ¶ 15, 108 N.M. 98, 766
P.2d 1332 (“Evidence from which a proposition can be derived only by speculation
among equally plausible alternatives is not substantial evidence of the proposition.”).
{18} 	“Although appellate courts are highly deferential to a jury’s decisions, it is the
independent responsibility of the courts to ensure that the jury’s decisions are
supportable by evidence in the record, rather than mere guess or conjecture.” State v.
Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930 (internal quotation marks and citation
omitted). In State v. Maes, this Court found the Second Circuit’s discussion in
Goldhirsh Grp., Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir. 1997) helpful in discerning

13
the fine line that sometimes exists between permissible inference and impermissible
speculation:
The line between permissible inference and impermissible speculation
is not always easy to discern. When we ‘infer,’ we derive a conclusion
from proven facts because such considerations as experience, or history,
or science have demonstrated that there is a likely correlation between
those facts and the conclusion. If that correlation is sufficiently
compelling, the inference is ‘reasonable.’ But if the correlation between
the facts and the conclusion is slight, or if a different conclusion is more
closely correlated with the facts than the chosen conclusion, the
inference is less reasonable. At some point, the link between the facts
and the conclusion becomes so tenuous that we call it ‘speculation.’
When that point is reached is, frankly, a matter of judgment.
State v. Maes, 2007-NMCA-089, ¶ 18, 142 N.M. 276, 164 P.3d 975 (quoting
Goldhirsh Grp., Inc.,107 F.3d at 108).
D. 	Analysis
1. 	Timing of Defendant’s Deception and Mr. Kent’s Decision to Allow Her
Access to His Accounts
{19} 	We begin our analysis by noting that at the time that Mr. Kent began allowing
Defendant to access his accounts for her own purposes in October 2010 and at the
time he made her a joint owner on his accounts on December 15, 2010, and January
4, 2011, Defendant was not married. The evidence shows that Defendant married Mr.
Marquez on January 20, 2011. Although Mr. Marquez testified that prior to his
marriage with Defendant, he and Defendant “cohabitat[ed] . . . off and on[,]” his
testimony does not establish when their relationship began or whether it was exclusive

2Our review of the trial testimony belies the State’s assertion in its answer brief that
“Defendant was living at . . . [Marquez]’s house” at the time that she met Mr. Kent.
To the contrary, Mr. Marquez testified that prior to their marriage, he and Defendant
“cohabitat[ed] . . . off and on.” After he and Defendant married in January 2011, Mr.
Marquez “moved into the mobile home with her[.]” Later, Mr. Marquez bought a
home and he and Defendant moved there. Mr. Marquez stated that Defendant began
“developing” her relationship with Mr. Kent while she was living at [his] home. He
did not testify that he and Defendant were living together when Defendant and Mr.
Kent met.
14
or continuous prior to their marriage.2 Thus, the evidence adduced at trial did not show
that Defendant had deceived Mr. Kent in any way at the time that Mr. Kent decided
to allow Defendant access to his accounts and to make her a joint owner of his
accounts. Thus, the point that the State raised at trial and again raises in its answer
brief—that Mr. Kent “did not know he was putting a married woman on his
accounts”—is not persuasive because it is based on the assumption of a fact that was
actually disproved by the evidence at trial.
{20} 	Defendant’s deceptive behavior becomes sufficiently apparent, however, when
she married and moved in with Mr. Marquez in January 2011 and not only failed to
tell Mr. Kent this significant detail about her personal life during the “couple times a
week” they spent together, but blatantly lied to Mr. Kent when she introduced Mr.
Marquez to him as her gay friend in May 2011. Regardless of whether Defendant’s
deception established her intent to defraud Mr. Kent when she hid the fact that she

15
was married to Mr. Marquez, the issue on appeal is not what Defendant intended, but
rather what Mr. Kent himself relied upon when he allowed her to use his accounts.
2. 	Insufficient Evidence of Reliance
{21} 	During the State’s examination of Mr. Kent at trial, the prosecutor did not ask
Mr. Kent whether he would have allowed Defendant to continue to access his
accounts if he knew that Defendant was involved with and had eventually married Mr.
Marquez. Instead, when the prosecutor asked Mr. Kent “what caused” him to allow
Defendant to access his money and make Defendant a joint owner on his accounts, he
replied, “[i]t would be easier for her and her bookkeeping and also the contact with
money and then she would replace it.” On cross-examination, Mr. Kent also testified
that he put Defendant on his accounts because he “wanted to help her out” with “her
family, . . . her children, and . . . other things.” He told the caseworker that he allowed
Defendant to access his accounts because “he felt sorry for [Defendant] and that he
was helping her.” Mr. Kent testified that, beyond their first meeting, the status of
Defendant’s romantic affairs was not “pertinent” to him until “now.” And when asked
whether he felt he was “tricked” into allowing Defendant to use his bank accounts,
Mr. Kent replied that he did not. This testimony is not sufficient to prove that Mr.
Kent would not have given Defendant access to his accounts but for his impression

16
that she was romantically available to him. See UJI 14-134; Young, 711 A.2d at 14;
Torcia, supra, § 427.
{22} 	Although Mr. Kent was “shocked” when he discovered that Defendant had been
married to Mr. Marquez, the evidence at trial was also insufficient to directly connect
Mr. Kent’s discovery of this fact with his decision to finally cut Defendant off from
his accounts. The prosecutor did not ask Mr. Kent whether learning of Defendant’s
marriage prompted him to stop her from using his accounts. Instead, the evidence
showed that Mr. Kent finally cut Defendant off from accessing his accounts for
several other reasons: “[t]he bank . . . kept hounding [him],” his “money in the bank
. . . was down[,]” he “finally woke up to see what was really happening to [his]
money,” and that “after a while it got so bad . . . [he] had to stop it.” Mr. Kent testified
that “[his] degeneration of [his] . . . contact with [Defendant,]” began when “the
sheriff’s representatives came out and talked” to him—he did not testify that learning
of Defendant’s marriage from Mr. Marquez caused him to take action or was the
reason he ended his relationship with her. Furthermore, there was no evidence that Mr.
Kent cut off Defendant’s access to his accounts prior to her last transaction on
February 14, 2012, which was at least two weeks after Mr. Marquez stated he told Mr.
Kent about his marriage to Defendant in January 2012.

17
{23} 	Without testimony from Mr. Kent regarding what he relied upon and whether
he would have continued to allow Defendant to access his accounts had he known her
true marital status, the remainder of the evidence presented at trial would, at best, be
equally consistent with two hypotheses on the factual element of reliance. See Garcia,
2005-NMSC-017, ¶ 12; Baca, 1988-NMCA-112, ¶ 15. One that, irrespective of
Defendant’s marital status, Mr. Kent’s own testimony appears to support the position
that he would have allowed Defendant to access his money to assist with her
children’s financial needs because they were close friends, he felt sorry for her, and
because she provided him with assistance and companionship. The second being that,
irrespective of Defendant’s assistance and companionship, Mr. Kent only allowed
Defendant to access his accounts because of he thought of her as his romantic partner.
{24} 	Mr. Kent was the State’s primary witness and testified at length in this case.
Evidence of Mr. Kent’s reliance on Defendant’s misrepresentation of her marital
status was not the type of evidence that was clandestine in nature, could only be
proved by circumstantial evidence, and therefore required the jury to disregard Mr.
Kent’s testimony and extract contradictory inferences from other indirect testimony.
Cf. State v. Gallegos, 2011-NMSC-027, ¶ 45, 149 N.M. 704, 254 P.3d 655
(recognizing that because conspiracies are clandestine in nature, establishing evidence
of an agreement between the conspirators is seldom available, the jury may infer such

18
an agreement from the parties’ conduct and the surrounding circumstances, even
though it raises the specter of a conviction by guess and speculation). The State offers
no explanation for its failure to ask Mr. Kent about what he relied upon when he gave
Defendant money and allowed her access to his accounts. Even if the jury could also
infer that, had the victim known the truth about Defendant’s marital status, he possibly
would not have given Defendant money or access to his accounts, we conclude that,
based upon the evidence presented, the jury could not reasonably make such a
circumstantial inference beyond a reasonable doubt. See Garcia, 2004-NMCA-066,
¶¶ 9, 11; Slade, 2014-NMCA-088, ¶ 14; cf. Commw. v. Imes, 623 A.2d 859, 863 (Pa.
Super. Ct. 1993) (concluding that the government failed to prove the element of
reliance on a false impression where “none of the [purported victims] were called to
testify at the trial[,]” and “[c]onsequently, none of them could state whether they
relied on [the] false impression”). The State failed to establish such a basis of reliance
when Mr. Kent competently testified at trial. Asking the jury to determine the victim’s
reliance from these two plausible inferences presented by the State, without asking the
victim about the matter during his trial testimony, was the type of evidentiary
guesswork and speculation that is insufficient for the State to meet its burden of proof.
See Slade, 2014-NMCA-088, ¶ 14.

19
{25} 	Therefore, because the State carried the burden to prove beyond a reasonable
doubt that “without” Defendant’s misrepresentation about her marital status, Mr. Kent
would not have allowed her to access his accounts, the other indirect and contradictory
circumstantial evidence was insufficient to infer the element of reliance necessary to
sustain Defendant’s fraud conviction. UJI 14-134 (providing that, in criminal trials in
which causation is an issue, the state must prove that “without” the defendant’s act,
“the injury or harm would not have occurred”); see Young, 711 A.2d at 14; Torcia,
supra, § 427; see also Hornbeck, 2008-NMCA-039, ¶ 33 (providing that substantial
evidence must support every element essential to the conviction). On the record before
us in this case, we hold that “the link between the facts and the conclusion” is “so
tenuous that we call it ‘speculation.’ ” Maes, 2007-NMCA-089, ¶ 18 (internal
quotation marks and citation omitted).
{26} 	We note that what makes Defendant’s conduct troubling is the age and
vulnerability of Mr. Kent. He was in his mid-eighties, just lost his wife of thirty-six
years, and needed someone to take him to his medical appointments and provide
personal companionship. Although Defendant helped Mr. Kent in these ways, she also
used his vulnerability to benefit herself in an amount that appeared somewhat
disproportionate. Rather than ask Mr. Kent to testify about whether he relied upon
Defendant’s marital status to allow her to access his accounts, the State asked the jury

20
to infer such reliance based upon other indirect and contradictory circumstantial
evidence. We cannot speculate as to why the State presented its case in this manner.
This was either a tactical trial decision by the prosecutor or an inadvertent error.
Unfortunately, the other indirect circumstantial evidence was insufficient to establish
the element of reliance beyond a reasonable doubt.
E. 	Computer Access with Intent to Defraud
{27} 	We also conclude that there was insufficient evidence to support Defendant’s
conviction of computer access with intent to defraud. Our Supreme Court has
concluded that “the Computer Crimes Act was intended by the [L]egislature to deter
and punish crimes committed, at least in a manner of speaking, against computers, or
through the abuse of computer sophistication.” State v. Rowell, 1995-NMSC-079,
¶ 12, 121 N.M. 111, 908 P.2d 1379. The Court noted that the Senate bill upon which
the Act was based stated that “[t]he [L]egislature recognizes a dramatic increase in
computer-related crimes . . . through the introduction of fraudulent data into a
computer system, the unauthorized use of computer facilities, the alteration or
destruction of computerized information or files[,] and the stealing of financial
information, data [or] other assets.” Id. ¶ 12 n.2. It observed that the Act was not
intended to apply to the use of a computer as “a passive conduit through which the
defendant’s criminal activity passed.” Id. ¶ 11.

21
{28} 	In this case, Defendant did not introduce “fraudulent data into a computer
system,” use “computer facilities” without “[authorization,] . . . alter[] or [destroy] .
. . computerized information or files[,]” nor did she steal “financial information, data
[or] other assets.” Id. ¶ 12 n.2. Instead, Defendant used the computer as “a passive
conduit” to access accounts and transfer funds, just as any banking customer would.
Id. ¶ 11.
{29} 	Furthermore, because we have concluded that the evidence was insufficient to
prove that the underlying transfers made via the computer were criminal, and because
Mr. Kent expressly approved Defendant’s use of a computer to perform these
transfers, the elements of computer access with intent to defraud could not be proved
beyond a reasonable doubt.
CONCLUSION
{30} 	Because we reverse Defendant’s convictions and remand the case to the district
court with instructions to vacate Defendant’s convictions, we need not address the
other issues that Defendant raises on appeal.
{31} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge

I CONCUR:

M. MONICA ZAMORA, Judge

JONATHANB. SUTIN, Judge (dissenting).

22

23
SUTIN, Judge (dissenting).
{32} 	I acknowledge that one might question whether the peculiar and particular
circumstances in this case should be covered under the criminal fraud statute. Why not
leave it to civil fraud remedies? Why not, as Defendant strongly argued in her briefing
and in oral argument, exclude deception in romantic relationships from criminal
prosecution? Further, why not fall back on a view that the circumstances showed it
only more likely than not that Mr. Kent relied on Defendant’s conduct, deceitful
hiding of material information, and fraudulent misrepresentations and omissions? I am
unable to follow these why-not paths. Therefore, I respectfully dissent and would
affirm.
{33} 	Looking at the totality of circumstances, particularly including Defendant’s
conduct, practices, and misrepresentations (including omissions), it seems apparent
that the jury strongly believed that Defendant engaged in a deliberate, willful
fraudulent scheme to have access to Mr. Kent’s bank accounts. And the district court
must have viewed the circumstances in a similar fashion, having imposed consecutive
nine-year sentences for the two convictions for a total of eighteen years, ten of which
were suspended, and having denied Defendant’s motion for a restitution hearing and
imposing restitution in the amount of $53,800.

24
{34} 	Further, viewed in the light most favorable to the verdict, as we must, the
evidence presented at trial should be considered sufficient to support Defendant’s
convictions, including the element of reliance. State v. Nichols, 2014-NMCA-040,
¶ 15, 321 P.3d 937 (stating that in our review of sufficiency-of-the evidence claims,
we view the evidence in the light most favorable to the guilty verdict). I would affirm.
{35} 	The jury was instructed, in relevant part, that to find Defendant guilty of fraud,
the State was required to prove that (1) Defendant, “by any words or conduct,
misrepresented a fact to [Mr.] Kent, intending to deceive or cheat” him; and (2)
“[b]ecause of the misrepresentation and [Mr.] Kent’s reliance on it, [D]efendant
obtained over $20,000[.]” This instruction is the law of the case against which the
sufficiency of the evidence supporting the jury’s verdict of guilty of fraud beyond a
reasonable doubt is to be measured. See State v. Smith, 1986-NMCA-089, ¶ 7, 104
N.M. 729, 726 P.2d 883 (“Jury instructions become the law of the case against which
the sufficiency of evidence is to be measured.”).
{36} 	Mr. Kent inquired into Defendant’s marital status upon their first meeting in
May 2010. Although at that time Defendant was apparently living with her boyfriend,
Mr. Marquez, whom she married in January 2011, Defendant told Mr. Kent at the time
only that she was not married, but that she had previously been married.

25
{37} 	Within several months following that meeting, Defendant persuaded Mr. Kent
to allow her access to his bank accounts, and one month before she married Mr.
Marquez, Defendant persuaded Mr. Kent to add her as a co-owner of his bank
accounts and to use the accounts to help Defendant with her children’s education and
her “problems.”
{38} 	Mr. Kent testified that he and Defendant started a friendship when Defendant
offered to take and then began taking Mr. Kent to doctors and to hospitals. According
to Mr. Kent, after a year or so, he and Defendant “liked each other.” “After a while,”
Mr. Kent regarded Defendant as a close friend, not “quite a lover,” but someone in
whom he had a romantic interest; and, as Mr. Kent described it, they “were both
content.”
{39} 	Beginning in October 2010, before Mr. Kent added Defendant as a co-owner
of his bank accounts in December 2010, Defendant transferred money from one of Mr.
Kent’s accounts into her own accounts using the online-transfer banking feature
available through Mr. Kent’s bank. Defendant continued to transfer money from Mr.
Kent’s accounts into her own account through mid-February 2012. Mr. Kent had
given Defendant permission to effect transfers and withdrawals from his accounts, and
he did not specify a limit nor did he require a specific account of what the money was
to be used for. Mr. Kent also gave Defendant permission to use his debit card, and she

26
did so. At times, Defendant paid Mr. Kent back at least some of the money that she
had taken from his accounts. Mr. Kent did not know how much Defendant had paid
back.
{40} 	Defendant never told Mr. Kent that she had married Mr. Marquez; in fact, she
introduced Mr. Marquez, her then-husband, to Mr. Kent in May 2011 and told Mr.
Kent that Mr. Marquez was her “gay friend.” In January 2012, Mr. Marquez went to
Mr. Kent’s home to tell him that he and Defendant were married; according to Mr.
Marquez, Mr. Kent “was shocked” by that information. In February 2012, Mr. Kent
permanently removed Defendant from his accounts. Three days later, Mr. Kent filed
an “affidavit of online fraud” with his bank.
{41} 	Given that the affidavit was admitted at trial as an exhibit, this Court sua sponte
obtained a copy. The subject of the affidavit of online fraud was a series of
enumerated transactions achieved by “unauthorized ATM activity[,] unauthorized
branch withdrawal and deposit activity[, and] unauthorized teletransfer activity”
totaling several thousand dollars that occurred between September 2011 and February
2012. In handwritten responses to the questionnaire portion of the affidavit of online
fraud, Mr. Kent provided the following relevant answers. In response to the question
“[w]hen and how did you discover the fraud in your account?” Mr. Kent answered that
“[a]round [the] 9th of February 2012, secondary acct holder’s ex-husband . . .

27
informed me of some suspicious activity.” In response to the question “[d]o you know
who might have committed the fraud?” Mr. Kent responded, “Yes– Patricia G. Garcia.
‘Girlfriend’[.]” And, in response to the questionnaire’s request to “[e]xplain how the
person that committed the fraud might have gained access to your account
information[,]” Mr. Kent wrote, “manipulated, convinced me to trust her . . . [.]”
{42} 	These facts, among others in the record, must be viewed by us within the
context of the evidence as a whole and considered within the totality of the
circumstances while indulging all reasonable inferences in favor of the jury’s verdict
of guilt beyond a reasonable doubt. State v. Graham, 2005-NMSC-004, ¶ 13, 137
N.M. 197, 109 P.3d 285; see Gallegos, 2011-NMSC-027, ¶ 18 (rejecting a “divide-
and-conquer” approach to considering the sufficiency of the evidence “whereby each
piece of evidence is viewed in isolation, ignoring reasonable inferences from the
totality of the circumstances that support guilt” (internal quotation marks omitted)).
“When 	we 	infer, 	we 	derive 	a 	conclusion 	from 	proven 	facts 	because 	such
considerations as experience, or history . . . have demonstrated that there is a likely
correlation between those facts and the conclusion. If that correlation is sufficiently
compelling, the inference is reasonable.” Maes, 2007-NMCA-089, ¶ 18 (internal
quotation marks and citation omitted).

28
{43} 	By applying the appropriate standards of review to the jury’s decision, the jury
could have reasonably inferred that, by asking Defendant at the outset of their
relationship whether she was married, the mid-eighty-year-old victim, whose wife had
recently died, intended to learn whether Defendant was available to engage in a
romantic relationship. Defendant’s response that she was not married, while
technically 	correct, 	could 	reasonably 	have 	been 	considered 	by 	the 	jury 	as
disingenuous given that she was living with her boyfriend, Mr. Marquez, whom she
married months later. The jury could also have reasonably inferred that Defendant
intended to deceitfully present herself as romantically unattached. See Stettheimer,
1980-NMCA-023, ¶ 13 (stating that silence that is calculated to deceive may form the
basis for a criminal misrepresentation). In addition, based on Defendant’s almost
immediate and continuing pursuit of Mr. Kent’s money, the jury could have
reasonably inferred that Defendant’s conduct was purposeful in order to eventually
gain access to Mr. Kent’s money, an inference that is supported by the fact that within
months of their first meeting, Defendant had direct access to Mr. Kent’s bank
accounts. State v. Brenn, 2005-NMCA-121, ¶ 24, 138 N.M. 451, 121 P.3d 1050
(recognizing that “intent is usually inferred from the facts of the case” and established
by circumstantial, not direct, evidence).

29
{44} 	Further, the jury could have reasonably inferred that Defendant understood that
Mr. Kent’s willingness to allow her access to his accounts was grounded in Mr. Kent’s
impression that Defendant was his “girlfriend,” and in addition, that Defendant’s
conduct showed an intent to continue her ruse so as to continue using Mr. Kent’s
money, an inference that was supported by Defendant having never informed Mr.
Kent of her pre-marriage relationship with and her marriage to Mr. Marquez and by
her affirmative misrepresentation when introducing Mr. Marquez as her gay friend.
Finally, based on the overall circumstances and on Mr. Kent’s affidavit of online fraud
stating that Defendant gained access to his bank accounts by having “manipulated”
and “convinced [him] to trust her[.]” This, combined with the use of the term
“girlfriend,” in quotation marks and underlined, allowed the jury to reasonably infer
that but for Defendant’s deceitful conduct intended to lead Mr. Kent to believe that
she was romantically unattached, unmarried, and was his girlfriend, he would not have
permitted Defendant to access his bank accounts. This inference is further supported
by the fact that, although Mr. Kent always knew that Defendant was accessing his
bank accounts and using his money, he stated that he did not discover the fraud on his
account until Mr. Marquez informed him in February 2012 of “some suspicious
activity.” From Mr. Marquez’s testimony, the jury could infer that the “suspicious
activity” to which Mr. Kent referred included that Mr. Marquez was not Defendant’s

30
gay friend but was, instead, her husband. Viewed in the context of the evidence as a
whole, the jury could reasonably have concluded that but for the knowledge that
Defendant’s “activity” was “suspicious” from which Mr. Kent could believe that
Defendant’s intent and activity was to defraud him, Mr. Kent would not have
considered Defendant’s use of his bank accounts to be fraud.
{45} 	To hold that the evidence in this case was insufficient to prove Mr. Kent’s
reliance on Defendant’s fraudulent conduct, misrepresentations, and omissions sweeps
aside reasonable inferences formed by the jury in reaching its verdict. See Slade,
2014-NMCA-088, ¶ 13 (noting that “the weight and effect of the evidence, including
all reasonable inferences to be drawn from both the direct and circumstantial evidence
is a matter reserved for determination by the [jury]” and recognizing that this Court
should not substitute its judgment for that of the jury (internal quotation marks and
citation 	omitted)). 	Although 	“[t]he 	line 	between 	permissible 	inference 	and
impermissible speculation is not always easy to discern[,]” see Maes, 2007-NMCA-
089, ¶ 18 (internal quotation marks and citation omitted), the jury’s verdict in this case
was supported by evidence and by permissible inferences drawn from that evidence,
and it should be upheld. See Slade, 2014-NMCA-088, ¶ 14 (recognizing that an
inference is a logical deduction from proven facts).

31
{46} 	The notion that evidence of reliance was insufficient because Mr. Kent never
explicitly testified that he relied upon Defendant’s conduct and statements relating to
her marital status or her relationships with Mr. Marquez in allowing Defendant access
to and partial ownership of his accounts is a theory that originated on appeal. Having
heard the prosecution’s direct and re-direct examination of Mr. Kent, and having
himself cross-examined Mr. Kent, Defendant’s trial counsel did not once raise or
argue the fact that Mr. Kent had not explicitly testified that he relied on Defendant’s
continuing purposeful failure to reveal her relationship with Mr. Marquez and
marriage to him in allowing Defendant to access his bank accounts.
{47} 	This, notwithstanding the fact that after the prosecution presented its case,
Defendant’s counsel moved for a directed verdict on grounds having nothing to do
with a failure of evidence on reliance. See State v. Barreras, 2007-NMCA-067, ¶ 3,
141 N.M. 653, 159 P.3d 1138 (“The question presented by a directed verdict motion
is whether there was substantial evidence to support the charge.” (internal quotation
marks and citation omitted)). It seems safe to assume that Defendant’s trial counsel
inferred, as did the jury, that based under the totality of the circumstances, including
in particular Defendant’s conduct and material misrepresentations and omissions, and
the content of Mr. Kent’s affidavit of online fraud identifying Defendant’s marriage
to Mr. Marquez as the basis for his claim, that the element of reliance was proved.

32
{48} 	A good part of Defendant’s argument on appeal dwelled on a view that the
criminal fraud statute and any reasonableness standard cannot be applied to romantic,
fleeting, and fickle relationships, in that persons in such relationships can be, and
often are, deceitful and unreasonable. To bring these relationships under the criminal
fraud statute, Defendant argues, opens a dangerous prosecution door of criminal
liability not contemplated by or intended to be covered under the criminal fraud
statute. The Majority Opinion does not address this policy argument. This argument
might have legs in the Legislature, but it has none in this case.
{49} 	Because the mainstay of the Majority Opinion is that reliance was not proved
because 	Mr. 	Kent 	did 	not 	explicitly 	say 	that 	he 	relied 	on 	Defendant’s
misrepresentations, I have limited this dissent to that question. I have not dissected
Defendant’s arguments relating to materiality, privacy, free speech, double jeopardy,
and due process. Those issues need be addressed only if this case happens to return
to this Court after certiorari review by our Supreme Court. In sum, the element of
reliance required to prove fraud rested upon a combination of proven facts and
permissible inferences, with each inference reasonably derived from evidence at trial.
Accordingly, viewing the evidence and inferences in a light most favorable to the
verdict, I would uphold the jury’s verdict and affirm Defendant’s convictions.
_____________________________
JONATHAN B. SUTIN, Judge