July 31, 2020- State of New Mexico v. Kimberly Ann Ledbetter, No. A-1-CA-37352

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

a Court of Appeals of New Mexico
Opinion Number: Filed 7/31/2020 9:12 AM

Filing Date: July 31, 2020 A. [> :
a ead
ark Reynolds

NO. A-1-CA-37352 M

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

Vv.

KIMBERLY ANN LEDBETTER,
Defendant-A ppellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Kea W. Riggs, District Judge

Hector H. Balderas, Attomey General
Santa Fe, NM

John Kloss, Assistant Attomey General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
John Bennett, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION	1
HANISEE, Chief Judge.	2
{1} 	Defendant Kimberly Ledbetter appeals from her convictions for residential	3
burglary, contrary to NMSA 1978, Section 30-16-3(A) (1971); larceny, contrary to	4
NMSA 1978, Section 30-16-1(B) (2006); and criminal damage to property (over	5
$1000), contrary to NMSA 1978, Section 30-15-1 (1963). On appeal, Defendant	6
raises the following challenges: (1) the State presented insufficient evidence to	7
support Defendant’s convictions for residential burglary, larceny, and criminal	8
damage to property; and (2) the district court fundamentally erred by providing the	9
jury an incomplete instruction concerning accessory liability. We reverse.	10
BACKGROUND	11
{2} 	Thomas 	Wulf 	owned 	the 	residential 	property 	at 	issue 	(the 	property),	12
consisting of a house, a detached garage, and a guest house. Thomas resided at the	13
property until 2008, following which he hired Sonny Candelaria, a handyman, to	14
conduct repairs and renovations. Sonny intermittently worked at the property about	15
once or twice a week, occasionally allowing a week to pass between his visits, and	16
Thomas would periodically visit to check on the work’s progress. From June through	17
October 2013, however, Sonny had neither been to nor worked at the property. In	18
October 2013, when Sonny arrived to continue the remodeling work, he discovered	19
that “everything was kind of demolished,” with several fixtures and appliances	20

2
stolen and significant structural damage from the removal of items such as ceiling	1
fans, electrical wiring, and air conditioning units. Sonny immediately informed	2
Thomas, who called the police to report the burglary.	3
{3} 	A police sergeant from the Chaves County Sheriff’s Office (CCSO) arrived	4
to investigate the burglary at the property. The sergeant observed as many as three	5
different shoe tracks and collected approximately sixteen items of evidence. Twelve	6
of those items were submitted for DNA testing, including cigarette butts, soda cans,	7
water bottles, and human excrement. Both male and female DNA were detected on	8
the items, and Defendant’s DNA matched the DNA found on three cigarette butts	9
and three soda cans. Of those, one cigarette butt and one soda can were collected in	10
the master bedroom, one cigarette butt in the southwest bedroom, and two soda cans	11
and one cigarette butt in the laundry room.	12
{4} 	At trial, the sergeant testified that at a post-incident interview, Defendant	13
admitted that she was a smoker, but stated that she was not in Roswell between April	14
and October 2013. However, two officers contradicted Defendant’s statement,	15
testifying that they had contact with Defendant in Roswell on September 22 and	16
October 1. The sergeant further testified that he did not see evidence that someone	17
was living at the property, that he identified at least three different footprints, and	18
that he found plastic casing and paper insulation on the floor from where someone	19
spent time stripping the copper from the electrical wiring. On cross-examination, the	20

3
sergeant indicated that he was unable to determine whether the burglary occurred	1
over a period of time or all at one time, and that none of the stolen items had yet	2
been recovered or linked to Defendant. The expert who conducted the DNA testing	3
testified at trial and discussed in detail the results of the samples that matched	4
Defendant. On cross-examination, the expert explained that the DNA evidence	5
simply indicates that Defendant’s DNA was on certain samples, but it cannot explain	6
how or when the Defendant’s DNA transferred onto the samples. Defendant did not	7
present any witnesses or evidence, and the jury convicted Defendant of residential	8
burglary, larceny, and criminal damage to property.	9
DISCUSSION	10
I. 	Insufficient Evidence Supported Defendant’s Convictions for Residential	11
Burglary, Larceny, and Criminal Damage to Property	12
{5} 	Defendant argues that there was insufficient evidence to establish her	13
convictions for residential burglary, larceny, and criminal damage to property. We	14
agree and address each conviction in turn.	15
{6} 	In reviewing the sufficiency of the evidence on appeal, we view the evidence	16
“in the light most favorable to the [s]tate, resolving all conflicts and making all	17
permissible inferences in favor of the jury’s verdict.” State v. Dowling, 2011-	18
NMSC-016, ¶ 20, 150 N.M. 110, 257 P.3d 930. We must “determine whether any	19
rational jury could have found the essential facts to establish each element of the	20
crime beyond a reasonable doubt.” Id. “Our appellate courts will not invade the	21

4
jury’s province as fact-finder by second-guessing the jury’s decision concerning the	1
credibility of witnesses, reweighing the evidence, or substituting its judgment for	2
that of the jury.” State v. Gwynne, 2018-NMCA-033, ¶ 49, 417 P.3d 1157 (internal	3
quotation marks and citation omitted). “While we cannot substitute our own	4
judgment for that of the jury in weighing the evidence, . . . [we] ensure that, indeed,	5
a rational jury could have found beyond a reasonable doubt the essential facts	6
required for a conviction.” State v. Vigil, 2010-NMSC-003, ¶ 4, 147 N.M. 537, 226	7
P.3d 636 (internal quotation marks and citation omitted). Specifically, “we have a	8
duty to assure that the basis of a conviction is not mere speculation.” Id. ¶ 19 (internal	9
quotation marks and citation omitted); see UJI 14-6006 NMRA (providing that a	10
jury’s “verdict should not be based on speculation, guess or conjecture”). “Jury	11
instructions become the law of the case against which the sufficiency of the evidence	12
is to be measured.” State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d	13
883.	14
A. 	Residential Burglary	15
{7} 	As to the charge of residential burglary, the jury was instructed that the State	16
must prove beyond a reasonable doubt that (1) “[D]efendant entered a dwelling	17
without authorization”; (2) “[D]efendant entered the dwelling with the intent to	18
commit a theft or [c]riminal [d]amage to [p]roperty (over $1000) when inside”; and	19
(3) “This happened in New Mexico on or about or between April 1, 2013 and	20

5
October 7, 2013.” (Emphasis added.) A “dwelling house” was defined as “any	1
structure, any part of which is customarily used as living quarters.” Moreover, for	2
each of the three charges, the State was required to prove beyond a reasonable doubt	3
that Defendant acted intentionally, and the instructions elaborated that “[a] person	4
acts intentionally when she purposely does an act which the law declares to be a	5
crime [and w]hether [D]efendant acted intentionally may be inferred from all of the	6
surrounding circumstances.”	7
{8} 	Defendant does not dispute her unauthorized entry into the property, but she	8
contends that “mere unauthorized entry does not lead to a reasonable inference of	9
[her] intent to commit a felony or theft therein” as is required for burglary. At trial,	10
the State presented evidence of Defendant’s DNA found on cigarette butts and soda	11
cans at the property, Defendant’s statement that she was not in New Mexico during	12
April to October 2013, and officers’ testimonies regarding contact with Defendant	13
in Roswell in late September and early October 2013. The State contends that	14
Defendant’s DNA found on items “near areas of the residence in which extensive	15
damage 	had 	occurred 	over 	necessarily 	protracted 	periods 	of 	time” 	and 	the	16
Defendant’s statement that she was not in New Mexico—despite testimony by	17
officers stating otherwise—supports an inference of Defendant’s “consciousness of	18
her own guilt for her involvement in what had occurred during her unauthorized	19
entry” on the property. We are unpersuaded.	20

6
{9} 	Based on our review of the record, the evidence establishes only that	1
Defendant entered the property without authorization. The State did not present	2
sufficient evidence to establish, either directly or by circumstantial evidence, the	3
specific intent required for a burglary charge—that Defendant entered the dwelling	4
“with the intent to commit a theft or [c]riminal [d]amage to [p]roperty,” such that a	5
rational jury could have found beyond a reasonable doubt the essential facts required	6
for a conviction. See Dowling, 2011-NMSC-016, ¶ 20; State v. Flores, 2010-NMSC-	7
002, ¶ 19, 147 N.M. 542, 226 P.3d 641 (recognizing that “circumstantial evidence	8
alone can amount to substantial evidence” and that intent is generally inferred from	9
the circumstances). Defendant’s statement, allegedly misleading the police about her	10
whereabouts over the relevant period, does not clearly establish a “consciousness of	11
her own guilt” as to the charged offenses. The statement could have suggested her	12
“consciousness of guilt” as to the unauthorized entry, but in either case, mere	13
speculation cannot form the basis of a conviction. See Vigil, 2010-NMSC-003, ¶ 19.	14
{10} 	Here, the speculation inherent in this conviction is evident when considering	15
the sergeant’s testimony that he was unable to determine whether the burglary	16
occurred over a period of time or all at once and that none of the stolen items had	17
yet been recovered or linked to Defendant. Further, the charging period of the	18
offense spans over six months, and despite investigations, the officers were unable	19

7
to establish a time frame that placed Defendant at the property when the offenses	1
occurred.	2
{11} 	The State cites to State v. Jennings for the proposition that “[a]n unauthorized	3
presence in a structure is evidence from which a jury could reasonably infer the	4
necessary intent to commit a felony or theft therein.” 1984-NMCA-051, ¶ 14, 102	5
N.M. 89, 691 P.2d 882. Defendant proposes that Jennings should be overruled or	6
modified. We consider Jennings to be inapplicable because there were attendant	7
circumstances in Jennings from which an inference of intent could be drawn, unlike	8
the facts here. There, the defendants appealed convictions for possession of burglary	9
tools and conspiracy to commit breaking and entering, and here Defendant appeals	10
a conviction for residential burglary. Id. ¶ 1. The charges in both Jennings and our	11
present case require specific intent—either demonstrating the intent to use the tools	12
in committing a burglary or the intent to commit a felony or theft on the property,	13
respectively. Id. ¶ 14; see UJI 14-1630 NMRA; UJI 14-1633 NMRA.	14
{12} 	In Jennings, we held that there was sufficient evidence to prove specific intent	15
based on the facts and the evidence presented regarding the defendants’ actions and	16
surrounding circumstances, allowing the jury to reasonably infer that the defendants	17
intended to break into the gas station and commit a theft. Jennings, 1984-NMCA-	18
051, ¶ 14 (“The facts . . . regarding the defendants’ actions and the surrounding	19
circumstances, provide sufficient evidence from which a jury could infer that [the]	20

8
defendants intended to break into the station and commit a theft therein. This is a	1
reasonable inference.”). There, officers testified at trial that they heard “metallic	2
banging” coming from the back of the gas station (the scene of the crime), that “one	3
defendant attempted to scale the [gas] station wall,” that there were “fresh marks	4
which appeared to be screwdriver marks . . . on the bathroom door, and [that] the	5
padlock had been broken off the basement door[,]” and that the defendants were	6
apprehended by officers with burglary tools on their persons. Id. ¶¶ 3-5, 12. In	7
contrast to the evidence in Jennings, there is simply no comparable direct or	8
circumstantial evidence here that leads to an inference of Defendant’s intent to	9
commit a theft or felony at the property. Bowman v. Inc. Cty. of Los Alamos, 1985-	10
NMCA-040, ¶ 9, 102 N.M. 660, 699 P.2d 133 (“An inference is more than a	11
supposition or conjecture. It is a logical deduction from facts which are proven, and	12
guess work is not a substitute therefor.” (internal quotation marks and citation	13
omitted)).	14
{13} 	Moreover, in Jennings, several officers arrived at the gas station close in time	15
to the suspected burglary and apprehended the defendants on the scene. 1984-	16
NMCA-051, ¶¶ 3-4. Here, however, Defendant was not apprehended at the scene as	17
the suspected burglary took place. Instead, Defendant was apprehended after the	18
burglary was discovered to have taken place sometime between April and October	19
2013, and only after her DNA was determined to be on cigarettes and soda cans left	20

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behind at the scene during that same time period. Although some of those cigarettes	1
and soda cans were found near where copper wiring was stripped and near significant	2
structural damage, such evidence alone does little to narrow the broad window	3
within which that DNA evidence was left or tangibly link it to the occurrence of the	4
underlying crimes. As well, some of the DNA samples linked to Defendant also	5
contained DNA contributions from unknown persons. Absent more, the DNA	6
evidence from Defendant found on discarded cigarettes and soda cans on premises	7
that had been unoccupied in excess of six months cannot support a reasonable	8
inference that Defendant intended to commit a theft or to criminally damage the	9
property upon entry. In fact, Defendant’s unauthorized entry could have occurred	10
weeks or months before or after any burglary took place. There is simply no evidence	11
that Defendant was present then, much less with the requisite intent. Our conclusion	12
is further supported by the sergeant’s testimony that the stolen property was neither	13
recovered nor linked to Defendant in any manner.	14
{14} 	What we have in this case is evidence of (1) Defendant’s unauthorized	15
presence on the property sometime within six months of the burglary; (2) stolen	16
fixtures and appliances as well as structural damage at the property; (3) Defendant’s	17
statement that she was not in New Mexico during April to October 2013; and (4)	18
officers’ testimonies of contact with Defendant on September 22 and October 1.	19
There is no evidence linking Defendant’s presence to any theft or proving that	20

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Defendant was present during the burglary, or otherwise assisted or encouraged such	1
burglary by others, except by speculation based on her DNA on cigarette butts and	2
soda cans. Notably, there was no DNA evidence found on any burglary tools or	3
plastic casing and paper insulation in the electrical wiring, nor fingerprints on the	4
damaged areas of the property, nor eyewitness testimony placing Defendant at the	5
scene during the incidents, nor even any evidence connecting Defendant to the stolen	6
items. See UJI 14-2823 NMRA (“Mere presence of the defendant, and even mental	7
approbation, if unaccompanied by outward manifestation or expression of such	8
approval, is insufficient to establish that the defendant aided and abetted a crime.”);	9
see also NMSA 1978, § 30-1-13 (1972). As such, for the jury to have reached the	10
conclusions necessary to yield a guilty verdict as to the residential burglary charge,	11
it necessarily had to speculate that Defendant’s presence on the property established	12
by Defendant’s DNA on cigarette butts and soda cans was sufficient to satisfy the	13
specific intent required here. While evidence of intent can be based on circumstantial	14
evidence, we will not uphold a conviction based on mere speculation. See Dowling,	15
2011-NMSC-016, ¶ 20; Flores, 2010-NMSC-002, ¶ 19. Here, none of the evidence	16
presented, individually or collectively, gives rise to any reasonable conclusion that	17
Defendant had the intent to commit a felony or theft at the property. Therefore, we	18
reverse Defendant’s conviction for residential burglary.	19

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B. 	Larceny and Criminal Damage to Property	1
{15} 	A similar analysis follows regarding Defendant’s convictions of larceny and	2
criminal damage to property. The jury instructions for larceny required that the jury	3
find beyond a reasonable doubt that (1) “[D]efendant took or carried away a battery,	4
battery charger, two air conditioners, a stove, electrical wires, electrical parts,	5
bathroom sink, toilet, plastic sawhorses, and a wheel barrow, belonging to another,	6
which had a market value [of] over $2,500.00”; (2) “At the time she took this	7
property, [D]efendant intended to permanently deprive the owner of it”; and (3)	8
“This happened in New Mexico on or about or between April 1, 2013 and October	9
7, 2013.” (Emphasis added.) To convict Defendant of criminal damage to property	10
(over 	$1000), 	the 	State 	had 	to 	prove 	beyond 	a 	reasonable 	doubt 	that: 	(1)	11
“[D]efendant intentionally damaged [the] property of another”; (2) “[D]efendant did	12
not have the owner’s permission to damage the property”;(3) “The amount of the	13
damage to the property was more than $1000.00”; and (4) “This happened in New	14
Mexico on or about or between April 1, 2013 and October 7, 2013.” (Emphasis	15
added.)	16
{16} 	The State contends that the jury received sufficient evidence to support the	17
convictions for larceny and criminal damage to property, pointing to testimony from	18
Thomas and Sonny regarding the condition of the residence before the incident(s)	19
and the missing items including copper electrical wiring, fixtures, and appliances.	20

12
The State emphasizes that soda cans and cigarettes with Defendant’s DNA found	1
close to areas where “labor-intensive damage” had occurred support the inference	2
that such damage would have taken several days to accomplish and contends that	3
such circumstantial evidence supports the verdicts. We disagree.	4
{17} 	In our earlier residential burglary analysis, we held that the evidence presented	5
at trial supported that Defendant entered the property without authorization,	6
however, failed to prove the necessary specific intent. See supra ¶ 14. Both larceny	7
and criminal damage to property also have comparable mens rea requirements. As	8
to the larceny conviction, in particular, there was an insufficient basis from which	9
the jury could infer that Defendant “took or carried away” the enumerated items, and	10
much less that she did so with the specific intent “to permanently deprive the owner”	11
based on the evidence at trial. See State v. Paris, 1966-NMSC-039, ¶ 5, 76 N.M.	12
291, 414 P.2d 512 (explaining that the corpus delicti of larceny is not established by	13
showing loss by the owner, access by the defendant, and the defendant’s unexplained	14
disappearance and rather that, where circumstantial evidence was sufficient to	15
establish the corpus delicti of larceny, some element of subsequent possession in the	16
defendant of the stolen property was present); see also State v. Brown, 1992-NMCA-	17
028, ¶ 17, 113 N.M. 631, 830 P.2d 183 (noting that where there are other	18
circumstances linking the defendant with a theft, possession of stolen property can	19
support a larceny conviction).	20

13
{18} 	Evidence that certain items and fixtures were missing from the property does	1
not establish that Defendant took the property or assisted in the taking of property	2
under an accomplice liability theory. The State effectively asked the jury to speculate	3
that Defendant necessarily must have participated in taking and carrying away of the	4
property or aided or encouraged another in taking the property because (1) the	5
property had not been found; and (2) Defendant was the only unauthorized person	6
identified to have been at the property at some unknown point in time during the	7
lengthy charging period. Cf. State v. Silva, 2008-NMSC-051, ¶ 19, 144 N.M. 815,	8
192 P.3d 1192 (discussing that a conviction for tampering could not be sustained	9
where the state effectively asked the jury to speculate that the defendant committed	10
the overt act of hiding the murder weapon because it was never found). We will not	11
uphold a conviction based on mere speculation; therefore, we conclude the evidence	12
is insufficient for a larceny conviction.	13
{19} 	Similarly, there was an insufficient basis from which the jury could infer that	14
Defendant damaged property. Again, her mere presence or unauthorized entry to the	15
property alone does not satisfy either the actus reus or the mens rea required for	16
criminal damage to property. See State v. Vargas, 2016-NMCA-038, ¶ 33, 368 P.3d	17
1232 (“Generally, mere presence during the commission of the charged offense,	18
even presence accompanied by mental approbation, is insufficient to infer the	19
criminal intent required by the statute.”). For the jury to reach a guilty verdict here,	20

14
it had to infer that, based on testimony that there was structural damage to the	1
property, Defendant “intentionally damaged [the] property of another” or “helped,	2
encouraged or caused” another to damage to property, merely because she was	3
present without authorization at some time during the six-month period. This is a	4
clear example of the sort of impermissible speculation our caselaw disallows.	5
{20} 	Given the complete lack of evidence directly linking Defendant to any	6
criminal activity at the property, except by speculation based on her DNA on	7
cigarette butts and soda cans discarded on the premises sometime within six months	8
of the crimes for which she was convicted, we conclude that there was insufficient	9
evidence to support Defendant’s convictions for larceny and criminal damage to	10
property beyond a reasonable doubt. Given our holding that there was insufficient	11
evidence to uphold Defendant’s convictions, we need not address Defendant’s	12
challenge to the accomplice liability instruction.	13
CONCLUSION	14
{21} 	For these reasons, we reverse and remand to the district court to vacate	15
Defendant’s convictions.	16
{22} 	IT IS SO ORDERED.	17
_________________________________	18
J. MILES HANISEE, Chief Judge	19

WE CONCUR:

KRISTINA BOG/Z#DUS, Judge
gusline 4. Yodo,

ACQUELINE R. MEDINA, Judge

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