State v. Snider

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 28,257 10 HAL RAYMOND SNIDER, II, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 13 Gary L. Clingman, District Judge

14 Gary K. King, Attorney General 15 Francine A. Chavez, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee

18 Templeman and Crutchfield 19 C. Barry Crutchfield 20 Lovington, NM

21 for Appellant 22 MEMORANDUM OPINION 23 FRY, Chief Judge. 24 Defendant appeals his convictions of two counts of larceny, contrary to 25 NMSA 1978, Section 30-16-1 (1987) (amended 2006). Defendant argues that, as

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1 to both counts, there was insufficient evidence to support the value element of the 2 offense, and as to one count, there was insufficient evidence to support a jury 3 finding that he stole the property. For the following reasons, we disagree with 4 Defendant’s assertions and affirm his convictions. 5 BACKGROUND 6 Following a jury trial, Defendant was convicted of two counts of larceny for 7 the theft of a number of pieces of oil field equipment that had been stolen from two 8 oil fields in southern New Mexico between March and July 2005. During this time 9 frame, Defendant and an accomplice had allegedly stolen a large amount of oil 10 field equipment from various wells around the region. Following the thefts, 11 Defendant and his accomplice apparently cleaned the equipment and then 12 Defendant sold the equipment to local businesses. At some point, one of 13 Defendant’s customers discovered that he had purchased stolen equipment and 14 notified the police. 15 During the ensuing investigation, a number of items that belonged to Basic 16 Energy, Weatherford Services, WRH, Inc., and ABC Tool Rental, all oil field 17 equipment supply companies, were traced back to Defendant. These items had all 18 been stolen sometime between July 1 and 5, 2005. While both Basic Energy and 19 Weatherford identified a large number of tools as their property, each company

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1 was only able to positively identify a small number of the stolen items due to the 2 lack of serial numbers or other identifying marks on the remaining items. 3 Weatherford was able to conclusively determine that two pieces of equipment, an 4 accelerator, or a jar, and a bumper sub were its property due to serial numbers on 5 the devices. Basic Energy was able to conclusively determine that some recovered 6 BJ tubing elevators were its property due to serial numbers on the equipment. 7 Based on the evidence obtained during the investigation, Defendant was 8 charged with four counts of larceny for the theft of items valued greater than $2500 9 but less than $20,000. The jury convicted on the counts related to Basic Energy 10 and Weatherford, but the trial court declared a mistrial on the counts related to 11 WRH and ABC Tools. Defendant appeals, arguing that there was insufficient 12 evidence of the value of the items he was convicted of stealing and that, as to Basic 13 Energy, there was insufficient evidence that he stole any property. 14 DISCUSSION 15 “In reviewing the sufficiency of the evidence, we must view the evidence in 16 the light most favorable to the guilty verdict, indulging all reasonable inferences 17 and resolving all conflicts in the evidence in favor of the verdict.” State v. 18 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. This review 19 “requires analysis of whether direct or circumstantial substantial evidence exists

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1 and supports a verdict of guilt beyond a reasonable doubt with respect to every 2 element essential for conviction. We determine whether a rational [fact finder] 3 could have found that each element of the crime was established beyond a 4 reasonable doubt.” State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 5 86 (citations omitted). Substantial evidence is “such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion.” State v. 7 Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation 8 marks and citation omitted). We do “not weigh the evidence or substitute [our] 9 judgment for that of the fact finder as long as there is sufficient evidence to support 10 the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789. 11 Basic Energy’s Equipment 12 For the theft from Basic Energy’s oil field, Defendant was charged with and 13 convicted of larceny pursuant to Section 30-16-1 for stealing property valued in 14 excess of $2500. In order for the jury to find Defendant guilty, the jury was 15 required to find that Defendant “took and carried away oil field tools belonging to 16 [Basic Energy], which had a market value over $2500.” Defendant argues that 17 there is a “total lack of any evidence” regarding the market value of the stolen 18 property and thus, that the jury could not have found that he stole property valued 19 in excess of $2500. In support of this contention, Defendant notes that the only

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1 stolen property that was positively identified as belonging to Basic Energy 2 consisted of the BJ tubing elevators, which had identifying serial numbers on them. 3 Defendant contends that while there was testimony that the value of all of the 4 equipment stolen from Basic Energy was approximately $15,000, there was no 5 testimony regarding the actual market value of the BJ tubing elevators that were 6 identified as belonging to Basic Energy. Thus, Defendant argues, there was 7 insufficient evidence for the jury to conclude that the tools Defendant stole from 8 Basic Energy had a market value over $2500. We disagree. 9 While Defendant focuses on the lack of evidence regarding the specific 10 value of the BJ tubing elevators, Defendant fails to acknowledge that he was 11 charged with stealing much more equipment than just the BJ tubing elevators. In 12 fact, Defendant was accused of stealing approximately $9500 worth of equipment 13 from Basic Energy. The jury heard testimony from Sisk, Defendant’s accomplice, 14 that the pair had stolen oil field equipment sometime around July 2, 2005. The 15 jury then heard testimony from Julian Carillo, a Basic Energy employee, that a 16 number of tools were stolen from an oil field that he was in charge of sometime 17 between July 1 and July 5, 2005. Mr. Carillo testified that a set of rod tongs, four 18 pipe wrenches, a number of hammer wrenches, a PAW valve, a key to the PAW 19 valve, and a set of BJ tubing elevators were all taken. Carillo further testified that

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1 the value of the stolen items was “[a]round $15,000 for everything back in 2005” 2 and that the value of the “elevators like those are somewhere around $1200.”1 In 3 addition, Mr. Roberts, the owner of a tool service who works with auction 4 companies to ascertain market value of oil field equipment, testified that the value 5 of the rod tongs alone was between $8000 and $10,000 and that because of the 6 rarity of oil field equipment, the value of used equipment parallels that of new 7 equipment. 8 That Basic Energy was only able to positively identify the BJ tubing 9 elevators as its property, after the theft does not alter the fact that a number of other 10 items were stolen at the same time. Because the theft of the BJ tubing elevators 11 was conclusively linked to Defendant, and because the BJ tubing elevators were 12 stolen at the same time as the rest of Basic Energy’s tools and equipment, the jury 13 could reasonably infer that Defendant was responsible for the theft of all of the 14 equipment stolen over the applicable time frame. Thus, the value of all of the 15 property that was stolen could properly be attributed to Defendant, not just the 16 value of the BJ tubing elevators.

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17 Despite Mr. Carillo’s unequivocal valuation of the elevators, Defendant 18 curiously argues that “Mr. Carillo did not provide any value of specific equipment and 19 of particular note, provided no value of BJ [t]ubing [e]levators.”

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1 Defendant next argues that there was testimony regarding only the 2 replacement value of the property, not the fair market value as required by the jury 3 instructions. Thus, Defendant contends, the jury was forced to speculate about the 4 fair market value of the stolen property, and speculation is not a permissible basis 5 for a conviction. We are not persuaded. 6 In State v. Hughes, 108 N.M. 143, 145-46, 767 P.2d 382, 384-85 (Ct. App. 7 1988) we noted that “[i]t is clear that an owner of personal property may testify 8 concerning the value of the property and that such testimony is sufficient to 9 support a jury’s determination of value.” We explained that “[t]he reason for this 10 rule is that the owner necessarily knows something about the quality, cost, and 11 condition of his or her property and consequently knows approximately what it is 12 worth.” Id. at 146, 767 P.2d at 385. Based on this rule, we held that a property 13 owner’s testimony that his property had a value well over $100, based on the 14 owner’s knowledge of the replacement cost of the property, was sufficient to 15 support the valuation element of larceny because “[t]he jury could reasonably infer 16 . . . that the price at which the property could ordinarily have been bought or sold 17 was in excess of $100 at the time it became received stolen property.” Id. In so 18 holding, we also explained that market value “means the price at which the 19 property could ordinarily be bought or sold” and that market value “is the

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1 equivalent of ‘retail price.’” Id. Applying this rule in State v. Barr, we concluded 2 that a homeowner’s testimony regarding the value of property stolen from her was 3 sufficient to support a conviction because “testimony of the purchase price of 4 consumer goods, when coupled with information about the age and condition of 5 the goods, is sufficient by itself to allow a jury to draw reasonable inferences about 6 the present market value of the items.” 1999-NMCA-081, ¶ 30, 127 N.M. 504, 984 7 P.2d 185. 8 Here, the jury heard testimony that it would cost $15,000 to replace all of the 9 equipment that Defendant stole. The jury also heard testimony that there was not a 10 lot of used equipment available on the market at the time of the theft, that the 11 replacement value paralleled the value of used equipment, that the rod tongs stolen 12 from Basic Energy alone had a value of approximately $10,000, and that the value 13 of the BJ tubing elevators was approximately $1200. Based on this evidence, the 14 jury was able to infer that the market value of the equipment stolen from Basic 15 Energy exceeded $2500, as required to convict Defendant. 16 Finally, Defendant argues that “the evidence presented in this matter defies 17 logic” because while Mr. Carillo testified that the property was stolen sometime 18 between July 1 and July 5, Mr. McInroe, one of the individuals who purchased the 19 stolen equipment from Defendant, testified that he had purchased the BJ tubing

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1 elevators prior to July 1. According to Defendant, it was impossible for him to 2 have stolen property from Basic Energy after July 1 that had been purchased by 3 McInroe prior to July 1. 4 On review for substantial evidence, we consider only whether substantial 5 evidence supports the verdict, not whether we would reach a different result upon 6 review of the evidence. See Mora, 1997-NMSC-060, ¶ 27. To the extent that there 7 is some conflict between the date that Mr. McInroe testified he purchased the 8 property from Defendant and the date that Defendant stole the property, resolution 9 of this conflict is solely the province of the jury, not of this Court on appellate 10 review. See State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) 11 (noting that we “neither reweigh the evidence nor substitute [our] judgment for that 12 of the jury”). Because there was evidence presented that the property was stolen 13 between July 1 and July 5, the jury was free to reject the testimony regarding the 14 date that the property was purchased and defer to the testimony of Defendant’s 15 accomplice, who testified that they stole equipment sometime around July 2, the 16 testimony of the Basic Energy employee that the equipment was stolen between 17 July 1 and 5, and the testimony of the deputy who investigated the crime who 18 testified that the equipment was stolen between July 1 and July 5.

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1 Because substantial evidence supports the jury’s determination that 2 Defendant stole property valued over $2500 from Basic Energy, we affirm 3 Defendant’s conviction on this count.

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1 Weatherford Services’ Equipment 2 Defendant makes the same arguments with respect to his conviction for 3 stealing oil field equipment from Weatherford that he made regarding the Basic 4 Energy theft. Defendant contends that because only one item was positively 5 identified as Weatherford’s, only that item can be used for purposes of calculating 6 the value of the stolen items, and there was insufficient evidence of the market 7 value of that one item. We disagree. 8 Mr. Balog, an employee of Weatherford, testified that equipment was stolen 9 from a Weatherford worksite sometime between July 2 and July 5, 2005. Balog 10 testified that an accelerator, an overshot, spiders and slips, top bushing, a bumper 11 sub, and some crossover subs were all stolen during this time frame. Because the 12 serial numbers had been ground off of most of the equipment, the only items that 13 Weatherford was positively able to identify when it recovered the property were 14 the accelerator and the bumper sub.2 15 Balog testified that the replacement cost of all of the equipment that was 16 stolen during this time frame was approximately $27,000, and that due to the 17 damage that had been done to the accelerator when the serial number was removed,

2 18 While counsel contends that only one item could be positively identified as 19 Weatherford’s, Balog unequivocally testified that both an accelerator and a bumper 20 sub were positively identified as Weatherford property.

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1 the company paid approximately $6800 to repair the device. Defendant again 2 argues that because the only testimony presented was the replacement cost of all 3 the equipment, and because only the accelerator and the bumper sub could be 4 positively identified as Weatherford’s equipment when the property was recovered, 5 there is insufficient evidence that the market value of the stolen equipment 6 exceeded $2500. 7 Defendant again assumes that he can only properly be convicted of stealing 8 property that Weatherford was able to positively identify as its own after the 9 property had been recovered. In making this argument, Defendant ignores the 10 permissible inference that if Defendant stole the identifiable property that went 11 missing around July 2, he also stole the unidentifiable equipment that went missing 12 at the same time. Defendant’s argument that a property owner must be able to 13 positively identify a piece of property before the thief can be convicted of stealing 14 it is unsupported by the law and defies logic. Such a rule would preclude the 15 conviction of any individual who steals property that is not marked by a serial 16 number. Similarly, the rule Defendant seeks to apply would preclude conviction 17 for the theft of property that is not recovered because an owner would be incapable 18 of identifying property that is not recovered.

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1 Thus, for purposes of determining the value of the stolen property, the jury 2 was permitted to consider both the items that were positively identified as 3 belonging to Weatherford as well as the items that were stolen from Weatherford 4 that were either not marked for identification or that had the identifying marks 5 removed. The fact that the replacement value of all of this property was $27,000 6 was enough to allow the jury to infer that the market value of the used equipment 7 was greater than $2500. In addition, the fact that Weatherford paid nearly $7000 to 8 repair the accelerator allowed the jury to make the reasonable inference that the 9 value of the accelerator alone exceeded $2500. Thus, substantial evidence 10 supports the jury’s determination that the equipment stolen from Weatherford had 11 a market value greater than $2500. CONCLUSION 12 For the foregoing reasons, we affirm Defendant’s convictions. 13 IT IS SO ORDERED.

14 15 CYNTHIA A. FRY, Chief Judge

16 WE CONCUR:

17 18 JONATHAN B. SUTIN, Judge

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2 MICHAEL E. VIGIL, Judge