June 28, 2017- State of New Mexico v. Bobby Saiz, No. 35,507

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _______________
Filing Date: June 28, 2017
NO. 35,507
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BOBBY SAIZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Drew D. Tatum, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
John J. Woykovsky, Assistant Attorney General
Albuquerque, NM
for Appellee
Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant appeals from the district court’s judgment and sentence, convicting
him of conspiracy to commit drug trafficking by distribution. Defendant argues: (1)
the evidence was insufficient, and (2) the district court improperly admitted a hearsay
text message into evidence under the exclusion for statements made by a co-
conspirator, pursuant to Rule 11-801(D)(2)(e) NMRA. We must decide whether the
State sufficiently proved its theory that Defendant was the middleman in a conspiracy
to sell methamphetamine to an undercover agent and a confidential informant, where
the drug transaction did not occur, the drugs were never seen, the co-conspirator was
never seen or verified, and the bulk of the State’s evidence consisted of Defendant’s
assurances that the transaction would take place. Concerned with the State’s heavy
reliance on Defendant’s extrajudicial statements to prove the conspiracy, we asked the
parties to brief the application of the modified trustworthiness rule, New Mexico’s
modern corpus delicti rule. See State v. Weisser, 2007-NMCA-015, ¶ 16, 141 N.M.
93, 150 P.3d 1043 (stating that the goal of both the corpus delicti rule and the
trustworthiness standards is to “ensure that individuals are not convicted of crimes [on
the basis of unreliable confessions when those crimes] did not in fact occur”),

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abrogated on other grounds as recognized by State v. Bregar, 2017-NMCA-028, ¶ 49,
390 P.3d 212.
{2} 	We hold that the corroboration requirements of the modified trustworthiness
rule do not apply to Defendant’s statements made pre-crime and in the course of the
crime. Considering Defendant’s statements as proof of the conspiracy, we hold that
the evidence was sufficient. We also are not persuaded that the text message
constituted hearsay offered to prove the truth of any assertion in the statement. We
affirm.
BACKGROUND
{3} 	Undercover Officer Waylon Rains testified that he and a confidential informant
(CI) arranged to meet with Defendant, who was to act as the middleman to facilitate
the purchase of four ounces of methamphetamine for $4,800. Officer Rains has been
in law enforcement for nineteen years, a lieutenant with the Clovis Police Department
for eleven years, and was undercover investigating narcotic crimes and a supervisor
in a five-county drug task force on the day in question. The CI was qualified as a
credible and reliable resource five years before the incident, had been working
continuously since then on hundreds of cases, and had never provided law
enforcement with wrong information that might have damaged his credibility.

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{4} 	Officer Rains and the CI were in contact with Defendant for about two weeks
leading up to the incident at issue. Previous transactions were scheduled but did not
occur because Defendant was not able to convince a third party to broker a transaction
in a manner consistent with the drug task force policy. The drug task force refused to
“front” the money for a drug purchase before the drugs were present and refused to
trust a person to leave from view with the money and return with the drugs. After
several failed attempts at brokering the deal, Officer Rains and the CI received
multiple phone calls from Defendant, who was contacting them to let them know he
had found a third party who was willing to bring the methamphetamine to them and
complete the exchange at one location. For this transaction, Defendant asked Officer
Rains and the CI to come to his house, bring the money, and then Defendant would
call the third party to bring the methamphetamine.
{5} 	When Officer Rains and the CI showed up at Defendant’s home in an unmarked
vehicle, Defendant came out, and they showed him a “flash roll” of cash to
demonstrate their ability and willingness to pay for the methamphetamine. Defendant
used his cell phone and spoke to someone he referred to as “Gilbert,” who Defendant
said was his cousin. He returned to the vehicle and said that Gilbert wanted them to
drive to Gilbert’s house and complete the transaction there. Because Officer Rains
wanted to control as much of the deal as possible to minimize the risk to himself and

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the CI, he refused to go to a stranger’s house. Officer Rains suggested they could
complete the transaction in the parking lot of a nearby convenience store because it
was close to Defendant’s house and Gilbert’s house, who was said to have lived in the
trailer park behind the convenience store. Defendant got back on his cell phone,
walked away, and then returned to the vehicle and reported that the proposed
arrangement was not satisfactory to Gilbert. After all negotiations were complete, they
finally agreed that Officer Rains and the CI would take Defendant to the trailer park
a block or so away from Gilbert’s residence; Defendant would go to the residence, get
one ounce of meth, and bring it back to the car; the officer would give Defendant the
money; then, Defendant would go back to the residence and bring the remaining three
ounces to the officer and the CI to complete the transaction.
{6} 	Officer Rains, the CI, and Defendant drove together in the vehicle to a side
street in the trailer park and parked about a block away from the residence. Defendant
left the vehicle, walked to the residence, knocked on the door, and talked to a person
who opened the door and whom the officer and the CI could not see or hear.
Defendant returned to the vehicle and stated that Gilbert was on his way and that they
could complete the deal shortly. In an effort not to give the appearance of an
undercover law enforcement operation, Officer Rains told Defendant they had a time
limit, they were tired of messing around, and that if the deal was not going to happen,

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then they would leave and get the drugs elsewhere. Defendant remained outside the
vehicle after arriving at the trailer park, walking between the yard of Gilbert’s home
and the yard next door, and was on and off his cell phone numerous times outside of
the officer’s hearing range. During the thirty to forty minutes that they were at the
trailer park, Defendant told Officer Rains that the reason for the delay was that Gilbert
had people in the neighborhood doing countersurveillance to see if there was any law
enforcement in the area. Shortly thereafter, a white Ford truck came driving up very
slowly from the same direction in which the officer’s vehicle was facing, passed the
officer’s vehicle, continued toward Gilbert’s home where Defendant was located,
slowed down even more when it came close to Defendant, and then accelerated around
the corner. Defendant returned to Officer Rains’ vehicle, reported that everything was
fine, and that it was Gilbert in the truck that just passed by them. Defendant did not
say why Gilbert did not stop or if he would come back.
{7} 	Officer Rains testified that he was concerned that something had gone wrong
that had aborted the transaction, so he alerted the cover team—stationed throughout
the area that had been monitoring his conversations through listening devices—to
attempt to stop a white Ford truck in the area. Officer Rains did not catch the license
plate, had little description to offer, and could not see anyone in the truck. Within two
to three minutes, other agents stopped a white Ford truck in the vicinity, but Officer

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Rains could not say whether it was the same truck. In the search of the truck that was
stopped, no drugs were found, and no one in the truck was named Gilbert.
{8} 	Back at the trailer park, Officer Rains told Defendant that he was tired of
waiting and asked Defendant if he wanted a ride back to his house. Defendant agreed
and asked if they could stop at a store so Defendant could buy some cigarettes. On
their way to the store, Defendant received a text message on his cell phone, which had
a shattered, unreadable screen and was set to speak the content of text messages as
they came in. The voice text said, “You better not be f[ 	]ing me over, prim.” Officer
Rains explained during his testimony that “prim” is short for “primo,” which is
Spanish for “cousin.”
{9} 	Also while on the way to the store, Officer Rains alerted the rest of the team to
stop his own undercover vehicle and arrest Defendant for conspiracy. After Officer
Rains, the CI, and Defendant pulled into the store’s parking lot, Defendant got out,
started walking toward the store, and the other agents intercepted Defendant; Officer
Rains and the CI left. Among those agents was Sergeant Rafael Aguilar of the Clovis
Police Department, who testified that Defendant was confused and agitated by his
arrest for conspiracy, continually yelling that there was no conspiracy and that he was
there to get methamphetamine for himself and would pay for it later.

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{10} 	The jury found Defendant guilty of the sole charge of conspiracy to commit
trafficking by distribution. Defendant appealed.
DISCUSSION
{11} 	On appeal, Defendant argues that the evidence was insufficient and that the
voice text was improperly admitted hearsay. We requested that the parties brief the
application 	of 	the 	modified 	trustworthiness 	rule 	to 	Defendant’s 	extrajudicial
statements made to Officer Rains and the CI to assist our review of the sufficiency of
the evidence to support his conviction. See, e.g., State v. Pietrzak, 41 P.3d 1240, 1245
(Wash. Ct. App. 2002) (explaining that the corpus delecti rule serves as both a rule of
evidence and a means to challenge the evidence “to protect a defendant from the
possibility of an unjust conviction based upon a false confession” (internal quotation
marks and citation omitted)); see also Bregar, 2017-NMCA-028, ¶¶ 45-49 (addressing
the corpus delicti argument in the context of the sufficiency challenge). In response
to our request, Defendant contends that there was no proof independent of his
statements that would corroborate the truth of his statements or establish the corpus
delicti of conspiracy. The State argues that the modified trustworthiness rule does not
apply to Defendant’s statements because they were made pre-crime and in the course
of the crime. We agree with the State and begin our analysis with a discussion of the

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modified trustworthiness rule and then proceed to address the sufficiency of the
evidence.
A. 	The Modified Trustworthiness Standard Does Not Affect Our Analysis of
the Evidence
1. 	Development of the Modified Trustworthiness Standard
{12} 	In determining whether the corroboration requirements of the modified
trustworthiness standard apply to Defendant’s extrajudicial statements, we first
examine its development from the corpus delicti rule and its purpose. “The term
‘corpus delicti,’ which literally means ‘body of the crime,’ refers to the evidence
needed to establish that the charged crime was actually committed.” Weisser, 2007-
NMCA-015, ¶ 10 (quoting Black’s Law Dictionary 369 (8th ed. 2004)). “The
[traditional] corpus delicti rule provides that unless the corpus delicti of the offense
charged has been otherwise established, a conviction cannot be sustained solely on the
extrajudicial confessions or admissions of the accused.” Id. (alteration, internal
quotation marks, and citation omitted). The prosecution can prove the corpus delicti
of an offense by demonstrating by independent evidence “the fact that a harm or
injury occurred and that the harm or injury was caused by a criminal act.” Id. The two
most cited purposes for the corpus delicti rule are (1) “to prevent the conviction of
those who confessed to non-existent crimes as a result of coercion or mental illness[,]”
and (2) to “promot[e] better police work by requiring the prosecution to prove its case

9
without the aid of confessions.” Id. ¶ 14 (internal quotation marks and citations
omitted).
{13} 	The traditional corpus delicti rule came under scrutiny for not sufficiently
serving its purposes and permitting the guilty to escape punishment and doing so
without a constitutional basis. See State v. Wilson, 2011-NMSC-001, ¶ 10, 149 N.M.
273, 248 P.3d 315 (noting the widely expressed “concern that the corpus delicti rule
was turning into a doctrinal obstacle whereby the guilty can escape punishment”
(emphasis, alterations, internal quotation marks, and citation omitted), overruled on
other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110; Thomas
A. Mullen, Rule Without Reason: Requiring Independent Proof of the Corpus Delicti
as a Condition of Admitting an Extrajudicial Confession, 27 U.S.F. L. Rev. 385, 387
(1993) (“No court has ever held that the rule is constitutionally grounded.”). In
response to these shortcomings, the United States Supreme Court replaced the corpus
delicti rule with the “trustworthiness” doctrine, which requires corroboration of the
trustworthiness of the defendant’s admissions or the essential facts in the defendant’s
admissions to sustain a conviction based on those admissions. See Weisser, 2007-
NMCA-015, ¶ 15 (citing Opper v. United States, 348 U.S. 84, 93 (1954)). This rule,
too, has been criticized as being “so malleable that almost any independent evidence

10
of anything can serve to corroborate the confession or make it trustworthy.” Id. ¶ 16
(internal quotation marks and citation omitted).
{14} 	New Mexico courts have also rejected the corpus delicti rule. See State v. Paris,
1966-NMSC-039, ¶¶ 9-13, 76 N.M. 291, 414 P.2d 512. The standard that was adopted
by our Supreme Court in Paris was less than clear, however, and was inconsistently
applied for decades. See Weisser, 2007-NMCA-015, ¶¶ 17-25 (explaining the lack of
clarity in the Paris opinion and the inconsistency with which it was applied).
Ultimately, this Court and our Supreme Court agreed that New Mexico has rejected
both doctrines in their original forms and adopted a modified trustworthiness rule that
combines the standards: “an extrajudicial statement may be used to establish the
corpus delicti where the statement is shown to be trustworthy and where there is some
independent evidence to confirm the existence of the alleged loss or injury.” Weisser,
2007-NMCA-015, ¶ 18 (emphasis added); see Wilson, 2011-NMSC-001, ¶¶ 13, 15
(confirming that Weisser states the appropriate modified trustworthiness standard used
in New Mexico and acknowledging that its application has been inconsistent and
unclear). Our review of the corpus delicti jurisprudence shows that few jurisdictions
have adopted the hybrid standard that governs in New Mexico. See United States v.
Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir. 1992) (expressing the court’s belief, not
expressed by other circuit courts, that United States Supreme Court case law after

11
Opper has resurrected the requirement that the government present independent proof
that a crime occurred in addition to the corroboration required for the facts in the
defendant’s statements); State v. Lucas, 152 A.2d 50, 61 (N.J. 1959); State v. Bishop,
431 S.W.3d 22, 54 (Tenn. 2014) (citing the New Jersey Supreme Court’s opinion in
Lucas and our Supreme Court’s opinion in Wilson as the two previous cases that
adopted the modified trustworthiness standard).
{15} 	Unfortunately, the unclear development of the modified trustworthiness
standard in New Mexico suggests an inconsistent application of the standard and
provides us with little understanding of the reasons underlying the decision to afford
greater protection for defendants against their own statements as opposed to nearly the
entire country. What we glean from our Supreme Court’s opinion in Paris is that the
Court believes confessions “ ‘stand high in the probative hierarchy of proof[,]’ ” and
therefore, greater safeguards are appropriate and the hybrid approach strikes the better
balance between assuring that confessions are true and preventing the guilty from
escaping punishment. 1966-NMSC-039, ¶ 11 (quoting Lucas, 152 A.2d at 61).
2. 	The Modified Trustworthiness Standard Does Not Apply to Defendant’s
Statements
{16} 	Many jurisdictions have adopted the view that their own corroboration
requirements for admissions and confessions apply only to post-crime statements or
confessions, and not to statements or admissions made before or during the

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commission of the crime. See, e.g., Opper, 348 U.S. at 90; Warszower v. United
States, 312 U.S. 342, 347 (1941); Gov’t of V.I. v. Hoheb, 777 F.2d 138, 141-42 (3d
Cir. 1985); United States v. Soteras, 770 F.2d 641, 644 n.4 (7th Cir. 1985); United
States v. Pennell, 737 F.2d 521, 537 (6th Cir. 1984); United States v. Head, 546 F.2d
6, 9 (2d Cir. 1976); United States v. Kaechele, 466 F. Supp. 2d 868, 890-91 (E.D.
Mich. 2006); People v. Chan, 26 Cal. Rptr. 3d 878, 886 (Cal. Ct. App. 2005); State
v. Johnson, 821 P.2d 1150, 1162 (Utah 1991); Pietrzak, 41 P.3d at 1245-46. This
corroboration exception for pre-crime and course-of-crime statements is based on a
1941 United States Supreme Court case stating that the need for corroboration of
extrajudicial statements protects against convictions based on false confessions alone
and that where such statements are “made prior to the crime [the] danger does not
exist” because “[t]hey contain none of the inherent weaknesses of confessions or
admissions after the fact.” Warszower, 312 U.S. at 347. Courts subsequently expanded
the Warszower exemption for pre-crime statements to statements made during the
commission of the crime. See, e.g., Hoheb, 777 F.2d at 142 (listing four cases that
extended the holding of Warszower to apply to statements made during the course of
a conspiracy). In Hoheb, the Federal Circuit court contrasted “confessions induced or
coerced during police investigations, or on other involuntary statements made during
that stressful and confused time” with “admissions made while the crime is in

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progress[, which] bear none of these indicia of unreliability.” Id. Our review of the
relevant case law reveals that it is the majority position to treat pre-crime and course-
of-crime statements as falling outside of corroboration requirements. See, e.g.,
Johnson, 821 P.2d at 1162 (characterizing the view that statements made prior to or
during the commission of a crime do not need corroboration as “the majority position”
and adopting it as “sound policy”). Not all cases however, have followed the principle
in Warszower and its progeny. See United States v. Bryce, 208 F.3d 346, 355-56 (2d
Cir. 1999) (requiring corroboration for unknowingly wiretapped statements and
creating, without any authority, two categories of statements made in the course of a
crime and not requiring corroboration for only one category—those in the nature of
self-corroborating statements, which did not include the wiretapped statements);
United States v. Marshall, 863 F.2d 1285, 1286-87 (6th Cir. 1988) (stating that the
corroboration requirement is only for post-offense statements, but nevertheless, the
court required corroboration for statements made to an undercover agent in the course
of the crime); United States v. Muskovsky, 863 F.2d 1319, 1324-25 (7th Cir. 1988)
(acknowledging that the defendant could not be convicted of conspiracy based solely
on his own uncorroborated admissions made after the conspiracy ended); United
States v. O’Connell, 703 F.2d 645, 647 (1st Cir. 1983) (stating that whether “Opper’s
corroboration requirement is limited to admissions made after the completion of the

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crime and made to a government agent” is a question that “has split the courts,” listing
cases taking different approaches and refusing to take a position because there was
adequate independent corroboration); United States v. Northrup, 482 F. Supp. 1032,
1037-38 (D. Nev. 1980) (explaining that the Ninth Circuit has taken internally
inconsistent approaches to the timing of the statements and to whom they are made
and holding that statements made by a conspirator to an investigator in the life of the
conspiracy but after the termination of the conspirator’s participation in the conspiracy
required corroboration); United States v. Hallman, 594 F.2d 198, 201 (9th Cir. 1979)
(“[T]he corroboration rule applies only to confessions or admissions made in the
course of the commission of the offense or in the course of investigation.”); United
States v. Tourine, 428 F.2d 865, 867-68 (2d Cir. 1970) (concluding that there was
sufficient corroboration for statements unknowingly made in the presence of an
undercover officer, but not acknowledging the case law that exempts such statements
from corroboration). We do not conclude that these cases have articulated a
compelling or unifying theory for deviating from the majority approach.
{17} 	New Mexico case law does not address the timing of extrajudicial statements
relative to our incarnations of the corpus delicti rule, nor does our law discuss
application 	of 	the 	corroboration 	exception 	to 	pre-crime 	and 	course-of-crime
statements. We observe that the majority position views statements made prior to and

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in the course of the crime as bearing none of the indicia of unreliability as post-crime
confessions and that there is little need for independent proof that the crime occurred
as a safeguard against a conviction for an imagined crime where the defendant’s
statements at issue were made in the course of the crime. See Johnson, 821 P.2d at
1162-63. We have found no out-of-state cases suggesting that the modified
trustworthiness standard is inconsistent with the majority approach.
{18} 	We also observe that, as a practical matter in the current case, it makes a
strained analysis to separate Defendant’s conspiratorial statements made pre-crime or
in the course of the crime from the independent evidence of his actions and the
circumstances that would corroborate the statements and establish the corpus delicti
of the offense. This difficulty is especially pronounced for the crime of conspiracy,
which is an inchoate crime with no tangible injury and requires no proof of an act in
furtherance of the conspiracy. See State v. Gallegos, 2011-NMSC-027, ¶ 59, 149 N.M.
704, 254 P.3d 655; State v. Lopez, 2007-NMSC-049, ¶ 21, 142 N.M. 613, 168 P.3d
743 (“An overt act is not required and the crime of conspiracy is complete when the
felonious agreement is reached.” (internal quotation marks and citation omitted)).
{19} 	Based on these considerations, we adopt the majority position and hold that
Defendant’s pre-crime and course-of-crime statements are not subject to the modified
trustworthiness standard. Therefore, in this case, the offense of conspiracy may be

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proved 	through 	Defendant’s 	statements 	without 	the 	need 	for 	independent,
corroborative evidence of the truthfulness of the statements or that the crime occurred.
See, e.g., Kaechele, 466 F. Supp. 2d at 891 (stating that the defendant’s statements
made during the course of the criminal activity “require no independent corroboration
in order to provide a sufficient basis for a jury’s determination of his guilt”).
{20} 	Next we assess the sufficiency of the evidence to support Defendant’s
conviction for conspiracy to traffic methamphetamine by distribution, considering
Defendant’s statements as part of the substantive proof of the offense.
B. 	The Evidence Was Sufficient to Convict Defendant of Conspiracy
{21} 	Defendant argues that the evidence did not establish a conspiracy to distribute
drugs because Defendant did not receive money from Officer Rains, no drugs were
ever produced or verified, and no co-conspirator was ever seen, identified, or verified.
Rather, Defendant asserts that the testimony shows that he “was attempting to game
Officer Rains and the [CI] to score drugs for himself.” The State contends the physical
absence of the drugs and co-conspirator are immaterial because the evidence shows
Defendant was working with another person to arrange the sale of methamphetamine
and that there was an agreement to do so. The State also contends that Defendant’s
claim that he was “gaming” the officer makes little sense in light of the arrangements

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and that, in any event, the jury was free to reject Defendant’s self-serving explanation.
We agree with the State that the evidence was sufficient.
1. 	Standard of Review for Sufficiency of the Evidence
{22} 	When assessing the sufficiency of the evidence, the appellate courts “view the
evidence in the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.” State v.
Samora, 2016-NMSC-031, ¶ 34, 387 P.3d 230 (internal quotation marks and citation
omitted). We disregard all evidence and inferences that support a different result. See
State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We then
determine whether “substantial evidence of either a direct or circumstantial nature
exists to support a verdict of guilt beyond a reasonable doubt with respect to every
element essential to a conviction.” State v. Garcia, 2016-NMSC-034, ¶ 15, 384 P.3d
1076 (internal quotation marks and citation omitted). “Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.”
State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and
citation omitted).

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2. 	Conspiracy
{23} 	To find Defendant guilty of conspiracy, the State was required to prove to the
jury beyond a reasonable doubt that “[D]efendant and another person by words or acts
agreed together to commit trafficking of methamphetamine” and that “[D]efendant
and another person intended to commit trafficking of methamphetamine[.]” See UJI
14-2810 NMRA; see also NMSA 1978, § 30-28-2(A) (1979). “The gist of conspiracy
under the statute is an agreement between two or more persons to commit a felony.”
Gallegos, 2011-NMSC-027, ¶ 25 (internal quotation marks and citation omitted); see
id. ¶ 1 (applying “for the first time our unit of prosecution analysis from double
jeopardy jurisprudence to multiple conspiracy convictions”). “It is the agreement
constituting the conspiracy which the statute punishes.” Id. ¶ 25 (internal quotation
marks and citation omitted). “[A] conspiracy is complete when the agreement is
reached.” Id. ¶ 45 (internal quotation marks and citation omitted). The criminal
objective of the agreement need not be achieved in order for a conspiracy conviction
to stand, and thus it is also an inchoate crime designed to permit intervention before
the underlying illegal activity is complete. See id. ¶ 59. It is also considered a
continuing crime that can expand or mature over time and add criminal objectives or
members without changing the fundamental nature of the agreement. See id. ¶ 46. As
a continuing crime, “[i]t ends only when the purposes of the conspiracy have been

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accomplished or abandoned.” Id. (internal quotation marks and citation omitted). At
its core, “[c]onspiracy was criminalized to address the special and continuing dangers
incident to group activity” with illegal objectives. Id. ¶ 59 (internal quotation marks
and citation omitted).
{24} 	Due to the typically clandestine nature of conspiracies, the prosecution’s proof
of a conspiracy is seldom direct evidence of the agreement. See id. ¶ 45. Usually the
jury must “infer the existence of an agreement based on the defendant’s conduct and
surrounding circumstances, which raises at least the specter of conviction by guess
and speculation.” Id.
3. 	Analysis of the Evidence
{25} 	Unlike a more typical conspiracy case that requires us to assess the inferences
that may be drawn from the circumstantial evidence, the main evidence of the
agreement in the current case was direct evidence—Defendant’s statements, assuring
Officer 	Rains 	and 	the 	CI 	of 	the 	existence 	of 	an 	agreement 	to 	sell 	them
methamphetamine, and his actions attempting to achieve the sale—and there was little
supporting circumstantial evidence. The jury’s verdict demonstrates that it credited
Defendant’s statements with truth and rejected the “gaming” defense that Defendant
had imagined the conspiracy to obtain drugs for himself. As an appellate court, we
will “not invade the jury’s province as fact-finder by second-guessing the jury’s

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decision concerning the credibility of witnesses, reweighing the evidence, or
substituting [our] judgment for that of the jury.” Garcia, 2016-NMSC-034, ¶ 15
(alterations, internal quotation marks, and citation omitted). To be consistent with our
standard of review, we do not adopt Defendant’s theory of the evidence and will not
indulge in inferences based on the absence of the drugs and co-conspirator from the
evidence that would support Defendant’s version of events. See State v. Montoya,
2015-NMSC-010, ¶ 52, 345 P.3d 1056 (“Contrary evidence supporting acquittal does
not provide a basis for reversal because the jury is free to reject [the d]efendant’s
version of the facts.” (internal quotation marks and citation omitted)); Rojo, 1999-
NMSC-001, ¶ 19 (same); see also Samora, 2016-NMSC-031, ¶ 34 (stating that the
appellate courts “view the evidence in the light most favorable to the guilty verdict,
indulging all reasonable inferences and resolving all conflicts in the evidence in favor
of the verdict” (internal quotation marks and citation omitted)). Assuming the truth
of Defendant’s statements, we proceed to assess the evidence that supports the finding
of an agreement between Defendant and another person to sell methamphetamine.
{26} 	After a few failed attempts to broker a drug transaction, Defendant contacted
Officer Rains, working undercover, to report that he had found a third party who was
willing to meet the officer’s requirement to bring the methamphetamine in order to
complete the exchange at one location. Defendant and Officer Rains arranged to meet

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at Defendant’s residence and then proceeded with the plan. After Officer Rains and
the CI went to Defendant’s residence and showed Defendant the purchase money,
Defendant used his cell phone to call his cousin, Gilbert, the third party to the plan.
Defendant reported that Gilbert would not come to his house and instead proposed
that Officer Rains and Defendant go to Gilbert’s residence for the transaction. The
officer refused this proposal, explaining in his testimony that he could not exercise the
desired level of control within that environment. For purposes of a conspiracy
agreement, it is immaterial that the officer did not agree to this transaction, because
neither a law enforcement officer nor a government agent can be a co-conspirator. See
Pennell, 737 F.2d at 536 (“[P]roof of an agreement between a defendant and a
government agent or informer will not support a conspiracy conviction.”). The
agreement must be shown to exist between the defendant and a non-governmental
agent. See, e.g., United States v. Jones, 765 F.2d 996, 1002 (11th Cir. 1985)
(explaining that the agreement between the undercover narcotics agent and the
defendant could not support the conspiracy, rather, it needed to be established between
the defendant and other non-governmental participants in the plan).
{27} 	In addition to Defendant’s assurances that Gilbert was willing and able to
provide the drugs, once all parties to the transaction appeared to have reached an
agreement on the location, there was some circumstantial evidence of the existence

22
of the co-conspirator. Defendant’s actions appeared to be those of a person attempting
to broker and execute a clandestine drug deal by continually talking on the phone in
a secretive manner, pacing, waiting, renegotiating, and changing locations. Defendant
explained that Gilbert had people countersurveilling the neighborhood for law
enforcement, and then shortly thereafter, a white Ford truck passed the renegotiated
location in a suspiciously slow manner and then sped off, which suggested that the
occupants of the truck were present to observe the scene. Defendant assured Officer
Rains and the CI that everything was fine because Gilbert was in that truck. Also, after
the truck passed by, the evidence showed that Defendant had received a voice text
saying, “You better not be f[ 	]ing me over, prim.” Indulging inferences in favor of
the verdict, we infer from the circumstances that this message was from Gilbert, and
it could imply an intent to complete the transaction with cautious optimism that it
would take place without incident. Again, the fact that Officer Rains abandoned the
plan before the transaction was achieved is not relevant to whether the conspiratorial
agreement was reached between Defendant and Gilbert. See Gallegos, 2011-NMSC-
027, ¶¶ 45, 59 (explaining that conspiracy is an inchoate crime for which the illegal
objective need not be achieved and is complete when the agreement is reached); see
also Jones, 765 F.2d at 1002 (same).

23
{28} 	Additionally, the co-conspirator does not need to have been convicted or
charged or even specifically identified in order to sustain a conspiracy conviction. See
State v. Gonzales, 2008-NMCA-146, ¶ 11, 145 N.M. 110, 194 P.3d 725 (holding that
where surveillance footage showed a grainy depiction of several people burglarizing
a store and the jury believed that the defendant was one of them, the fact that the other
burglars were not identified or proved to have any relationship to the defendant did
not undermine his conspiracy to burglarize conviction); see also State v. Verdugo,
1969-NMSC-008, ¶ 9, 79 N.M. 765, 449 P.2d 781 (holding that the dismissal of
charges against the co-conspirator did not preclude the defendant’s conspiracy
conviction).
{29} 	We also observe that an agreement on the specific details of the conspiratorial
agreement need not be reached or proved and that the agreement may mature over
time without changing the nature of the agreement or the essential illegal objective.
See Gallegos, 2011-NMSC-027, ¶ 46. New Mexico case law has stated that “[w]hile
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, ¶ 6, 74 N.M. 87, 390 P.2d 966. “A mutually implied understanding is sufficient
so far as combination or confederacy is concerned, and the agreement is generally a

24
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.” Id.
{30} 	We are persuaded that the supporting circumstantial evidence, though less
substantial than the direct evidence, is legally sufficient to prove an agreement to
traffic drugs and an intent to do so. We recognize the warnings from our Supreme
Court to be circumspect in identifying a criminal conspiracy, at least for double
jeopardy purposes, in light of the malleability of its definition. See Gallegos, 2011-
NMSC-027, ¶ 47. Gallegos cautioned courts to be mindful of the inherent dangers in
the “looseness and pliability” of conspiracy and to be vigilant in defining a
conspiracy, which is often inferred from the circumstances, and which “raises at least
the specter of conviction by guess and speculation.” Id. ¶¶ 44-45, 47 (internal
quotation marks omitted). Although the State’s evidence gives rise to these concerns,
it provided sufficient proof of the elements. In accordance with our standard of review
to accept the jury’s findings where there is supporting evidence and to ignore all
contrary evidence and inferences, we affirm Defendant’s conviction.
C. 	The Voice Text Was Not Inadmissible Hearsay
{31} 	In his final claim of error, Defendant argues that the district court wrongfully
admitted evidence of the voice text that was spoken from his cell phone as a non-
hearsay 	statement 	offered 	against 	the 	party-opponent 	“made 	by 	the 	party’s

25
co-conspirator during and in furtherance of the conspiracy[,]” under Rule 11-
801(D)(2)(e). As we stated earlier in this opinion, Officer Rains testified that the voice
text read aloud, “You better not be f[ 	]ing me over, prim.” The district court
overruled Defendant’s objection to the admission of the voice text, determining that
the State laid a sufficient foundation that “prim” is short for “primo,” which means
“cousin” in Spanish, and that the voice text was reasonably inferred to be from
Gilbert, Defendant’s purported cousin and co-conspirator.
{32} 	Defendant argues that the foundation was inadequate, relying on State v. Farris,
1970-NMCA-067, ¶¶ 9-10, 81 N.M. 589, 470 P.2d 561, for the proposition that a
statement by a co-conspirator can be admitted only where the evidence has
demonstrated a common purpose or design between the alleged co-conspirator and the
defendant; the statement, alone, cannot establish the conspiracy. But see, e.g., State
v. Zinn, 1987-NMSC-115, ¶¶ 32-33, 106 N.M. 544, 746 P.2d 650 (stating that “the
foundational requirement of proof of a conspiracy by independent evidence need not
be met at the time the [prosecution] offers the co-conspirator’s statement[,]” because
the district court may rule on the condition that the prosecution establish the
conspiracy by independent evidence).
{33} 	“We review the admission of hearsay evidence for an abuse of discretion.”
State v. King, 2015-NMSC-030, ¶ 23, 357 P.3d 949 (internal quotation marks and

26
citation omitted). We begin by determining whether the voice text was hearsay. See
id. ¶¶ 23-32 (determining first that the officer’s testimony recounting the defendant’s
statement was hearsay offered into evidence for its truth to establish self-defense and
then proceeding to decide that the statement does not fall within any hearsay
exception).
{34} 	“Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted.” Id. ¶ 24 (internal quotation marks and citation omitted); see Rule 11-
801(C). “ ‘Statement’ means a person’s oral assertion, written assertion, or nonverbal
conduct, if the person intended it as an assertion.” Rule 11-801(A) (emphasis added).
“By definition, then, statements or conduct which are non-assertive are not hearsay.”
Jim v. Budd, 1987-NMCA-079, ¶ 10, 107 N.M. 489, 760 P.2d 782. In Jim, this Court
held that where the challenged, extrajudicial statement was a direction made by the
plaintiff to the defendant—“let the gates down against the chain”—the statement was
“not an assertion that would either be true or false.” Id. ¶ 13 (internal quotation marks
omitted). We held that where the statement was “not offered for the truth of the words
uttered . . . [but r]ather . . . offered to show [that the plaintiff was] in control of the
procedure and that he knew what he was doing[,]” the statement was not hearsay. Id.
¶¶ 11, 13. We further held that, to the extent that assertions may be implied by the
statement, implied assertions are not hearsay. Id. ¶¶ 11-12.

27
{35} 	The statement at issue in the current case is an implied expression of skepticism
about Defendant’s intentions or actions, and/or it is an implied warning or an implied
threat of an undefined consequence. Like the directive by the plaintiff in Jim, which
was not used to prove the truth of the matter asserted, the statement here, “You better
not be f[ 	]ing me over, prim[,]” was not offered to prove the truth of the matter
asserted. The statement is relevant and offered into evidence because the statement
was made to Defendant at the time and under the circumstances that it was made to
Defendant. See State v. Aragon, 1973-NMCA-102, ¶ 7, 85 N.M. 401, 512 P.2d 974
(“A statement made may be admitted merely to prove that it was made and not to
prove that it is true.”); see also State v. Toney, 2002-NMSC-003, ¶ 3, 131 N.M. 558,
40 P.3d 1002 (holding that the defendant’s command to another person to leave the
victim at the river was not hearsay because it was not an assertion and it “was offered
not for its truth but for the fact that it was made”).
{36} 	Because we are not persuaded that the voice text was an intended assertion that
was being offered for the truth of the matter asserted, we hold that the statement, as
used, did not constitute hearsay. Therefore, we need not address whether the statement
was properly admitted under the hearsay exclusion for a statement made by a co-
conspirator during and in furtherance of the conspiracy under Rule 11-801(D)(2)(e).
See State v. Flores, 2010-NMSC-002, ¶ 44, 147 N.M. 542, 226 P.3d 641 (explaining

28
that the appellate courts may uphold a district court’s admission of an extrajudicial
statement if the ruling is right for any reason under the hearsay rules).
CONCLUSION
{37} 	For 	the 	foregoing 	reasons, 	we 	hold 	that 	sufficient 	evidence 	supports
Defendant’s conviction for conspiracy to commit drug trafficking by distribution and
that the district court did not abuse its discretion by admitting the voice text. The
district court’s judgment and sentence are affirmed.
{38} 	IT IS SO ORDERED.
_______________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_________________________________
TIMOTHY L. GARCIA, Judge
_________________________________
HENRY M. BOHNHOFF, Judge