N.M. Stat. § 30-28-2 (2026)

A. Conspiracy consists of knowingly combining with another for the purpose of
committing a felony within or without this state.

   B. Whoever commits conspiracy shall be punished as follows:

       (1)    if the highest crime conspired to be committed is a capital or first degree
felony, the person committing such conspiracy is guilty of a second degree felony;

       (2)   if the highest crime conspired to be committed is a second degree felony,
the person committing such conspiracy is guilty of a third degree felony; and

        (3)  if the highest crime conspired to be committed is a third degree felony or a
fourth degree felony, the person committing such conspiracy is guilty of a fourth degree
felony.

History: 1953 Comp., § 40A-28-2, enacted by Laws 1963, ch. 303, § 28-2; 1979, ch.
257, § 1.

                                     ANNOTATIONS

Cross references. — For compounding a crime, see 30-22-6 NMSA 1978.

                          I.     GENERAL CONSIDERATION.

Search of rental vehicle. — A passenger in a rental vehicle who is charged with
conspiracy and is not on the rental contract does not have standing to challenge a
search of the vehicle. State v. Van Dang, 2005-NMSC-033, 138 N.M. 408, 120 P.3d
830.

Section applicable to crimes within and outside of Criminal Code. — This section
applies to conspiracies to commit crimes whether they are contained in the Criminal
Code or are found elsewhere in the New Mexico statutes, e.g., securities laws. State v.
Shafer, 1985-NMCA-018, 102 N.M. 629, 698 P.2d 902, cert. denied, 102 N.M. 613, 698
P.2d 886.

Conspiracy to commit depraved-mind murder. — This section does not encompass
conspiracy to commit depraved-mind murder. State v. Baca, 1997-NMSC-059, 124 N.M.
333, 950 P.2d 776, abrogated by State v. Revels, 2025-NMSC-021.

Conspiracy to manufacture methamphetamine. — Subsection A of this section does
not clearly and unequivocally alert a person to the possibility of prosecution and
punishment for conspiracy to manufacture methamphetamine. The court was not
persuaded that a defendant-seller shares a purchaser's intent to commit a crime merely
because the defendant had knowledge of the purchaser's intended use of those goods
or services at the time of the sale. In this context, knowledge of the other's criminal
objective is not necessarily equivalent to an intention to bring about the objective. State
v. Maldonado, 2005-NMCA-072, 137 N.M. 699, 114 P.3d 379, cert. quashed, 2006-
NMCERT-001, 139 N.M. 272, 131 P.3d 659.

Number of criminal conspiracies. — The number of agreements to break the law
determines the number of criminal conspiracies subject to prosecution. State v.
Sanders, 1994-NMSC-043, 117 N.M. 452, 872 P.2d 870.

Convictions of all conspirators unnecessary. — Although it takes two or more to
effect a conspiracy, conviction of all conspirators, or even more than one, is not required
and ordinarily, the entry of a nolle prosequi as to other alleged conspirators does not
vitiate the conviction of a remaining defendant charged with conspiring with them. State
v. Verdugo, 1969-NMSC-008, 79 N.M. 765, 449 P.2d 781.

Fact that co-defendant's substantive crimes dismissed not determinative for
conspiracy convictions. — There was sufficient evidence from which the jury could
have inferred that defendant had agreed with co-defendant, as a sales representative
and later as a sales manager of the condominium project, to sell unregistered securities
and to engage in sales practices which had the effect of operating as a fraud upon
purchasers. The fact that the substantive crimes of fraudulent practices and the sale or
offer to sell unregistered securities as to the co-defendant were dismissed by the trial
court is not determinative for the conspiracy convictions. The substantive crimes and
the crime of conspiracy are different, and involve separate concepts; and failure to
convict on one does not prevent a conviction on the other. State v. Shade, 1986-NMCA-
072, 104 N.M. 710, 726 P.2d 864, cert. quashed, 104 N.M. 702, 726 P.2d 856,
overruled on other grounds by State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d
92, aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Applicability of Wharton's rule. — Wharton's rule provides that an agreement by two
persons to commit a particular crime cannot be prosecuted as a conspiracy when the
particular crime is of such a nature as to necessarily require the participation of two
persons for its commission. The conduct involved in a conspiracy to commit trafficking
under the Controlled Substances Act (Section 30-31-1 NMSA 1978 et seq.) is not like
those offenses to which Wharton's rule traditionally applies and therefore the rule's
presumption does not apply to such a conspiracy. State v. Carr, 1981-NMCA-029, 95
N.M. 755, 626 P.2d 292, cert. denied, 95 N.M. 669, 625 P.2d 1186, and cert. denied,
454 U.S. 853, 102 S. Ct. 298, 70 L. Ed. 2d 145 (1981), overruled on other grounds by
State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, aff'd in part, 1995-NMSC-
077, 120 N.M. 740, 906 P.2d 731.

Expansion of Wharton’s Rule discouraged. — Where the conspiracy and the
substantive offense are the same crime because the concerted action was logically
necessary to prove the substantive offense, the multiple punishment, double-description
analysis under principles of double jeopardy is the better analysis to be applied, and the
future expansion of Wharton’s Rule is expressly discouraged. State v. Silvas, 2015-
NMSC-006, aff’g 2013-NMCA-093, 310 P.3d 621.

Trafficking controlled substances with intent to distribute and conspiracy based
on a single act. — Where defendant was convicted of trafficking a controlled substance
by possession with intent to distribute in violation of 30-31-20(A) NMSA 1978, and
conspiracy to commit the same crime in violation of this section, both charges based on
evidence of a single sale of drugs by defendant; the defendant’s conduct underlying
both crimes was unitary, and the state relied on the same evidence, the single sale of
drugs from defendant to the co-conspirator, as the basis to convict for both crimes; the
defendant was convicted twice and is being punished twice for the same offense,
resulting in a double jeopardy violation. State v. Silvas, 2015-NMSC-006, aff’g 2013-
NMCA-093, 310 P.3d 621.

Wharton’s Rule precluded a charge of conspiracy conspiracy to commit
trafficking drugs. — Where defendant was convicted for trafficking by possession with
intent to distribute methamphetamine and for conspiracy to commit trafficking; the
trafficking charge was based on a single sale of methamphetamine by defendant and to
defendant’s co-conspirator; defendant and the co-conspirator were the only parties
involved in the transaction; and the conspiracy charge was based on the same conduct
as the trafficking charge, Wharton’s Rule precluded the charge of conspiracy. State v.
Silvas, 2013-NMCA-093, cert. granted, 2013-NMCERT-009.

Conspiracy not barred by incarceration. — Incarceration may prevent active
participation in carrying out some of the acts of a conspiracy; it has no effect whatever
in dampening initiatory conspiratorial activity. State v. Gilbert, 1982-NMCA-081, 98 N.M.
77, 644 P.2d 1066.

Conspiracy not susceptible to firearm enhancement. — Since conspiracy is an
initiatory crime which involves no physical act other than communication, it is not
conceivable how a firearm could be used in the commission of that offense.
Accordingly, the crime of conspiracy is not susceptible to firearm enhancement under §
31-18-16 NMSA 1978. State v. Padilla, 1994-NMCA-067, 118 N.M. 189, 879 P.2d 1208.
Derivative liability. — Defendant, as a conspirator, can be guilty of a substantive
offense on a theory of derivative liability. State v. Armijo, 1976-NMCA-126, 90 N.M. 12,
558 P.2d 1151.

Aiding and abetting and conspiracy are distinct and separate concepts. State v.
Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.

Knowledge essential to aiding and abetting. — One does not become a party to a
conspiracy by aiding and abetting it unless one knows of the conspiracy. State v.
Dressel, 1973-NMCA-113, 85 N.M. 450, 513 P.2d 187.

Jury question. — When a series of illegal transactions has occurred, the issue of
whether there is one conspiracy directed toward several acts or multiple conspiracies is
a factual one for the jury. State v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720
P.2d 303, cert. denied, 104 N.M. 201, 718 P.2d 1349.

Sentencing for conspiracy to commit murder. — Conspiracy to commit murder is a
felony "resulting in the death of a human being" within the meaning of Section 31-18-
15A(2) (now Section 31-18-15A(4)) NMSA 1978. State v. Shije, 1998-NMCA-102, 125
N.M. 581, 964 P.2d 142.

Conspiracy as basis for post-conviction relief. — Where defendant claimed that an
assistant district attorney, a state police officer and two other persons violated this
section, that this conspiracy was directed against him and that as a result his conviction,
judgment and sentence were illegal, but did not allege in what manner the alleged
conspiracy affected him, he failed to state a basis for post-conviction relief. State v.
Dominguez, 1969-NMCA-045, 80 N.M. 328, 455 P.2d 194.

Unit of prosecution for conspiracy is an agreement. — The unit of prosecution for
conspiracy is the agreement to commit crime, not the criminal objectives of the
agreement, that is, the individual crimes that the agreement sets out to accomplish. The
legislature established a rebuttable presumption that multiple crimes are the object of
only one, overarching, conspiratorial agreement subject to one severe punishment set
at the highest crime conspired to commit. The totality of the circumstances test is the
mechanism to determine the exceptional instances in which the presumption of
singularity may be overcome by demonstrating the existence of more than one
conspiracy. The factor considered in the totality of circumstances analysis include
whether the location of the conspiracies is the same, whether there is a significant
degree of temporal overlap between the conspiracies, whether there is an overlap of
personnel between the conspiracies, whether overt acts charged and the role played by
the defendant in the conspiracies are similar, whether there was a common goal among
the conspirators, and whether the agreement contemplated bringing to pass a
continuous result that would not continue without the continuous cooperation of the
conspirators. State v. Gallegos, 2011-NMSC-027, 149 N.M. 704, 254 P.3d 655.

                         II.    ELEMENTS OF CONSPIRACY.
Conspiracy is defined as a common design or agreement to accomplish an unlawful
purpose or a lawful purpose by unlawful means. State v. Chavez, 1983-NMSC-037, 99
N.M. 609, 661 P.2d 887.

Overt act not required. — Section does not require overt act in connection with the
conspiracy, as conspiracy in New Mexico is complete when the prohibited agreement is
reached. State v. Davis, 1978-NMCA-122, 92 N.M. 341, 587 P.2d 1352, cert. denied, 92
N.M. 353, 588 P.2d 554.

The overt act which constitutes the object of a conspiracy is no part of the crime of
conspiracy; an overt act is not required, but the crime is complete when the felonious
agreement is reached. State v. Leyba, 1979-NMCA-105, 93 N.M. 366, 600 P.2d 312;
State v. Gilbert, 1982-NMCA-081, 98 N.M. 77, 644 P.2d 1066.

Common design is essence of conspiracy. State v. Armijo, 1976-NMCA-126, 90 N.M.
12, 558 P.2d 1151; State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561.

Mutually implied understanding is sufficient so far as combination or confederacy is
concerned. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561; State v.
Davis, 1978-NMCA-122, 92 N.M. 341, 587 P.2d 1352, cert. denied, 92 N.M. 353, 588
P.2d 554.

Common design or mutually implied understanding. — Conspiracy is defined in
terms of a common design or mutually implied understanding. State v. Armijo, 1976-
NMCA-125, 90 N.M. 10, 558 P.2d 1149.

For a conspiracy to exist there must be a common design or a mutually implied
understanding; an agreement. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d
1161.

Common design may be established by circumstantial evidence. State v. Davis,
1978-NMCA-122, 92 N.M. 341, 587 P.2d 1352, cert. denied, 92 N.M. 353, 588 P.2d
554.

Formal agreement not necessary. — To establish conspiracy formal agreement need
not be proved; a mutually implied understanding is sufficient to establish the conspiracy.
State v. Dressel, 1973-NMCA-113, 85 N.M. 450, 513 P.2d 187; State v. Sheets, 1981-
NMCA-064, 96 N.M. 75, 628 P.2d 320, cert. quashed, 96 N.M. 116, 628 P.2d 686.

Knowledge of conspiracy necessary. — One cannot be a party to a conspiracy
unless one knows of the conspiracy. State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628
P.2d 320, cert. quashed, 96 N.M. 116, 628 P.2d 686.

Mere passive submission or acquiescence of conduct of others insufficient. — To
be guilty of conspiracy to shoot from a motor vehicle, there must have been an
agreement that one of the parties thereto would shoot a firearm recklessly from the
vehicle; the agreement could be explicit or a mutually implied understanding, but mere
passive submission or acquiescence in the conduct of others would not suffice. State v.
Mariano R., 1997-NMCA-018, 123 N.M. 121, 934 P.2d 315.

It takes at least two persons to effect a conspiracy as the essence of a conspiracy is
a common design or agreement to accomplish an unlawful purpose or a lawful purpose
by unlawful means. State v. Dressel, 1973-NMCA-113, 85 N.M. 450, 513 P.2d 187;
State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320, cert. quashed, 96 N.M.
116, 628 P.2d 686.

Conspiracy as single agreement. — Whether the object of a single agreement is to
commit one or many crimes, it is in either case that agreement which constitutes the
conspiracy which the statute punishes. State v. Ross, 1974-NMCA-028, 86 N.M. 212,
521 P.2d 1161.

Mere presence insufficient. — Where there was no evidence that defendant's partner
had any knowledge whatsoever of defendant's scheme, even though she was present
with him while he was effectuating it, the evidence was insufficient to sustain a
conviction for conspiracy. State v. Dressel, 1973-NMCA-113, 85 N.M. 450, 513 P.2d
187.

                             III.   DOUBLE JEOPARDY.

Entailing single punishment. — The one agreement cannot be taken to be several
agreements and hence several conspiracies because it envisages the violation of
several statutes rather than one; thus, where there is only one conspiracy and,
therefore, only one conspiracy offense, only a single penalty can be validly imposed.
State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.

Conspiracy and the completed offense are separate offenses and conviction of both
does not amount to double jeopardy. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558
P.2d 1151.

Double jeopardy not bar to conspiracy and substantive crime convictions. — Plea
of double jeopardy is no defense to convictions for a substantive offense and a
conspiracy to commit that offense. State v. Smith, 1985-NMCA-011, 102 N.M. 512, 697
P.2d 512.

Conspiracy to commit first-degree murder is a second-degree felony and a
fifteen-year term of imprisonment is an appropriate sentence. — Where defendant
was convicted of first-degree murder, conspiracy to commit first-degree murder, arson,
and tampering with evidence due to his involvement in the murder of a man, and where
defendant claimed that his fifteen-year sentence for conspiracy to commit first-degree
murder violated double jeopardy and was an unconstitutional sentencing enhancement
based on the victim’s death, defendant’s fifteen year sentence was the proper basic
sentence for a second-degree felony that resulted in the death of a human being. The
fact that defendant’s sentence for conspiracy to commit first-degree murder took into
account the factual consequence of the conduct, the victim’s death, did not violate
double jeopardy and was not an unconstitutional enhancement but rather the
appropriate basic sentence for a second-degree felony that resulted in the death of a
human being. State v. Chavez, 2021-NMSC-017.

Punishment for both constitutional. — Although defendant had been convicted and
was being punished for his conspiracy at the time of his trial, he was not placed in
double jeopardy by being convicted and sentenced on the substantive counts. State v.
Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.

Conspiracy does not arise out of same transaction as shoplifting. — A charge of
conspiracy does not arise out of the same transaction which results in an indictment for
shoplifting, and thus cannot be dismissed as in violation of a statute prohibiting the
charging of separate or additional offense if it arises out of the same transaction,
notwithstanding proof of the subsequent shoplifting may also tend to circumstantially
prove the conspiracy charge. State v. Leyba, 1979-NMCA-105, 93 N.M. 366, 600 P.2d
312.

Two distinct crimes shown. — Evidence that a conspiracy to commit burglary was
entered on the evening of November 16th, that the conspirators unsuccessfully
attempted to carry out the conspiracy at 10:30 p.m. of that day, and that the burglary
was performed between 9:00 and 9:30 a.m. of November 17th, showed two distinct
crimes, and there was no factual basis for the contention that they were either the same
or so similar that multiple convictions were prohibited. State v. Watkins, 1975-NMCA-
126, 88 N.M. 561, 543 P.2d 1189, cert. denied, 89 N.M. 6, 546 P.2d 71.

Convictions for trafficking controlled substances with intent to distribute and
conspiracy based on a single act. — Where defendant was convicted of trafficking a
controlled substance by possession with intent to distribute in violation of 30-31-20(A)
NMSA 1978 and conspiracy to commit the same crime in violation of this section, both
charges based on evidence of a single sale of drugs by defendant; the defendant’s
conduct underlying both crimes was unitary, and the state relied on the same evidence,
the single sale of drugs from defendant to the co-conspirator, as the basis to convict for
both crimes; the defendant was convicted twice and is being punished twice for the
same offense, resulting in a double jeopardy violation. State v. Silvas, 2015-NMSC-006,
aff’g 2013-NMCA-093, 310 P.3d 621.

Two convictions for one conspiracy unconstitutional. — Because the defendant
robbed two different victims but only one conspiracy to commit the robberies existed, it
was a violation of double jeopardy to convict the defendant for two conspiracies, as he
was punished twice for the same offense. State v. Jackson, 1993-NMCA-092, 116 N.M.
130, 860 P.2d 772, cert. denied, 115 N.M. 795, 858 P.2d 1274.

Rebuttable presumption that multiple crimes are the object of only one
overarching conspiratorial agreement. — Where the jury returned four conspiracy
convictions against defendant arising from one shooting, conspiracy to commit
aggravated battery (great bodily harm), conspiracy to commit aggravated battery
(deadly weapon), conspiracy to commit aggravated assault and conspiracy to commit
shooting at a dwelling, the state failed to overcome the presumption of a single
overarching conspiratorial agreement where the evidence established that the location
and time of the alleged conspiracies were the same, the personnel involved in the
several charged conspiracies were the same, and defendant's role in the several
charged conspiracies was the same. Defendant's multiple conspiracy convictions
violated double jeopardy. State v. Comitz, 2019-NMSC-011.

Rebuttable presumption of one conspiratorial agreement. — Where defendant was
found guilty of conspiracy to commit criminal sexual penetration (CSPM) of a minor,
conspiracy to commit kidnapping, conspiracy to commit intimidation or threatening a
witness, and conspiracy to commit bribery of a witness, and where the evidence
established that the conspiracy convictions involved the same victim and the same
perpetrators, and occurred in the same location during the same time period, without
any intervening events, the state did not present any evidence to overcome the
presumption of singularity. Moreover, the actions of defendant and defendant's son
were aimed at furthering a single goal or purpose, facilitating the commission of CSPM
upon the victim. State v. Garcia, 2019-NMCA-056, cert. denied.

The state failed to rebut the presumption of singularity. — Where petitioner pleaded
guilty to three conspiracy crimes, two conspiracies to commit nonresidential burglary
and conspiracy to commit larceny, the state failed to overcome the presumption of
singularity where although the three conspiracies occurred at three separate locations
and the elements of nonresidential burglary and larceny do not have similar overt acts,
the state failed to introduce evidence of intervening conduct or distinct conspiratorial
agreements, there was no conclusive evidence that there was more than one other
coconspirator, and the record establishes that petitioner was the constant actor in each
of the three alleged conspiracies. The evidence did not demonstrate more than one
agreement between two or more coconspirators nor that two conspirators made multiple
agreements in such a way that would justify multiple punishments under the conspiracy
statute. Torres v. Santistevan, 2023-NMSC-021.

Conviction for multiple conspiracies violated double jeopardy. — Where defendant
and another assailant broke into the home of the victim armed with metal bars or bats
and defendant struck victim with a metal bar, there was only one conspiracy to commit
multiple crimes and defendant’s conviction of the lesser conspiracy to commit
aggravated battery violated double jeopardy. State v. Trujillo, 2012-NMCA-112, 289
P.3d 238, cert. granted, 2012-NMCERT-011.

Where, following a fight at a bar between the victim and a conspirator, defendant and a
conspirator assaulted the victim at a conspirator’s residence and tied the victim up;
defendant guarded the victim with a knife; another conspirator gave the victim an
overdose of heroin; defendant and conspirators carried the victim to the victim’s car and
drove the car to a church; the victim was still alive; defendant tried three times to snap
the victim’s neck, a conspirator tried to suffocate the victim with a plastic bag, and
defendant tried to strangle the victim with the victim’s shoelaces; defendant and the
conspirators left the church and after consulting with other conspirators, returned to the
church and set the victim and the victim’s car on fire; defendant and other conspirators
went to the residence of a conspirator with whom the victim had the bar fight and the
conspirator paid fifty dollars to each conspirator; the entire sequence of events from the
bar fight to the arson of the victim’s car occurred within an eight hour period; during that
time, the conspirators exchanged numerous phone calls; and defendant was convicted
of conspiracies to commit kidnapping, first degree murder, and aggravated arson,
defendant entered into only one agreement and took part in only one conspiracy and
the court vacated defendant’s convictions of conspiracy to commit kidnapping and
arson. State v. Gallegos, 2011-NMSC-027, 149 N.M. 704, 254 P.3d 655.

                            IV.     EVIDENCE AND PROOF.

                                   A.     IN GENERAL.

Traffic in drugs in a drug-free school zone. — To convict a defendant of conspiracy
to traffic drugs in a drug-free school zone, the state must prove that the defendant had
knowledge that the transaction was occurring within a drug-free school zone. State v.
Wilson, 2010-NMCA-018, 147 N.M. 706, 228 P.3d 490, cert. denied, 2010-NMCERT-
001, 147 N.M. 673, 227 P.3d 1055.

Other evidence. — While 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, 74 N.M. 87, 390 P.2d 966.

Laying foundation for testimony. — When a sufficient foundation is laid by the
evidence to establish the existence of a conspiracy, the acts and declarations of
coconspirators in pursuance of the common purpose are admissible, whether
conspiracy is directly charged or not. State v. Farris, 1970-NMCA-067, 81 N.M. 589,
470 P.2d 561.

Out-of-court statements made by a coconspirator about matters relating to the
conspiracy are not admissible unless and until a prima facie case of conspiracy is
shown by other independent evidence. State v. Harge, 1979-NMCA-120, 94 N.M. 11,
606 P.2d 1105, overruled on other grounds by State v. Penner, 1983-NMCA-116, 100
N.M. 377, 671 P.2d 38.

Order of proof not dispositive. — The trial court has wide discretion in supervising the
order of proof in a conspiracy case, and hence regardless of whether acts and
declarations of one coconspirator were admitted prior to prima facie proof of a
conspiracy, the dispositive issue was whether there was prima facie proof of a
conspiracy apart from those acts and declarations, that is, evidence sufficient to make a
prima facie case which would support a finding. State v. Armijo, 1976-NMCA-126, 90
N.M. 12, 558 P.2d 1151.

Presenting co-defendant's guilty plea in defendant's conspiracy trial. — The fact
that a co-defendant has pled guilty to conspiracy to commit murder, presented to the
jury in a case involving the defendant's conspiracy, does not come within Rule 803(22),
N.M.R. Evid. (now see Paragraph V of Rule 11-803 NMRA), and is hearsay. State v.
Urioste, 1980-NMCA-103, 94 N.M. 767, 617 P.2d 156, cert. denied, 94 N.M. 806, 617
P.2d 1321.

                        B.     CIRCUMSTANTIAL EVIDENCE.

Conspiracy proved by inference. — Conspiracy consists of knowingly combining with
another for the purpose of committing a felony within or without this state. Direct
evidence of an overt act is not required and the crime of conspiracy is complete when
the felonious agreement is reached. The agreement may be inferred from statements
relating circumstances from which the jury could infer that defendant had agreed to act
with another. State v. Gonzales, 2008-NMCA-146, 145 N.M. 110, 194 P.3d 725, cert.
denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488; State v. Lopez, 2007-NMSC-
049, 142 N.M. 613, 168 P.3d 743; State v. Walters, 2007-NMSC-050, 142 N.M. 644,
168 P.3d 1068.

Established through circumstantial evidence. — A conspiracy may be established
by circumstantial evidence, the agreement being a matter of inference from the facts
and circumstances, which, considered as a whole, show the parties united to
accomplish the fraudulent scheme. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521
P.2d 1161.

Whether the defendant combined with another for an unlawful purpose may be shown
by circumstantial evidence or by a showing that evidence exists from which reasonable
inferences may be drawn supporting the existence of a conspiracy as shown from the
facts and circumstances. In re Ruben O., 1995-NMCA-051, 120 N.M. 160, 899 P.2d
603, cert. denied, 120 N.M. 68, 898 P.2d 120.

Circumstantial evidence for fact of inception of common design. — Question of
when conspirators began to act in pursuance of a common design is ordinarily not the
subject of direct proof; circumstances must be relied on to establish the fact. State v.
Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561.

Agreement a matter of inference. — A mutually implied understanding is sufficient so
far as combination or confederacy is concerned, which agreement is generally a 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. State v. Armijo, 1976-
NMCA-126, 90 N.M. 12, 558 P.2d 1151; State v. Deaton, 1964-NMSC-062, 74 N.M. 87,
390 P.2d 966.
Inference of conspiracy. — Conspiracy is seldom susceptible of direct proof and is
usually established by inference from the conduct of the parties. State v. Dressel, 1973-
NMCA-113, 85 N.M. 450, 513 P.2d 187; State v. Sheets, 1981-NMCA-064, 96 N.M. 75,
628 P.2d 320, cert. quashed, 96 N.M. 116, 628 P.2d 686.

                           C.     ACTS OF CONSPIRATORS.

Acts and declarations of coconspirators may be admitted into evidence whether or
not conspiracy is directly charged. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558
P.2d 1151.

Acts made during existence of conspiracy. — The acts and declarations of a
conspirator to be admissible against his coconspirator must occur during the existence
of the conspiracy. State v. Farris, 1970-NMCA-067, 81 N.M. 589, 470 P.2d 561.

Act made prior to consummation of crime. — A conspirator may testify to acts done
or statements made by a coconspirator from the commencement to the consummation
of the offense. State v. Robinson, 1972-NMCA-080, 84 N.M. 2, 498 P.2d 694.

Acts made prior to abandonment. — Rule that statements of a conspirator made after
abandonment of the conspiracy or after it has terminated without accomplishing its
object are inadmissible as against a co-conspirator, refers to those statements originally
made among conspirators, and not the testimony given at trial about those statements.
State v. Robinson, 1972-NMCA-080, 84 N.M. 2, 498 P.2d 694.

Acts prior to inception of conspiracy. — While the acts and declarations of one
conspirator during the existence of a conspiracy are competent evidence against his
coconspirators, no act or declaration made before the inception of the conspiracy may
be binding, or given in evidence against the coconspirator on trial. State v. Farris, 1970-
NMCA-067, 81 N.M. 589, 470 P.2d 561.

                         D.     SUFFICIENCY OF EVIDENCE.

Conspiracy to manufacture methamphetamine. — Where the evidence showed that
defendant and others went into a store to purchase Sudafed for methamphetamine, that
each person went into the store separately in order to purchase a larger quantity of
Sudafed, that Sudafed was used in the manufacture of methamphetamine, and that
defendant actually manufactured methamphetamine on the day after the trip to the store
to purchase the Sudafed, the jury could reasonably conclude that defendant conspired
to manufacture methamphetamine. State v. Brown, 2010-NMCA-079, 148 N.M. 888,
242 P.3d 455, cert. denied, 2010-NMCERT-007, 148 N.M. 611, 241 P.3d 612.

Conspiracy to intimidate a witness. — Evidence that defendant agreed with an
accused murderer to appear in court to shake up an eye witness to the murder and
make him afraid to testify truthfully or to have a lapse of memory in the murder trial and
to otherwise attempt to make sure that the witness refrained from testifying in a manner
that would harm the accused murderer, was sufficient to support the conviction of
defendant for conspiracy to intimidate a witness. State v. Martinez, 2008-NMCA-019,
143 N.M. 428, 176 P.3d 1160, cert. denied, 2008-NMCERT-001, 143 N.M. 397, 176
P.3d 1129.

Conspiracy to commit kidnapping. — Evidence that defendants, following an
argument with the victims about missing drugs, made the victims strip to their
underwear and sit on a couch, that one defendant held a knife to the throat of one
victim, that defendants searched victims’ clothes for the missing drugs, and that
defendants removed money and identification from the victims’ clothes, was sufficient to
support an inference that the defendants worked together to confine the victims in the
apartment and was sufficient to support the convictions for conspiracy to commit
kidnapping. State v. Herrera, 2015-NMCA-116, cert. denied, 2015-NMCERT-010.

Conspiracy to commit forgery. — In defendant’s trial for forgery, where the evidence
established beyond a reasonable doubt that four personal checks belonging to four
different people were washed and passed at four different times, and where there was
testimony that defendant had entered into an agreement with others to change genuine
checks so that their effect was different from the original, there was sufficient evidence
to prove beyond a reasonable doubt that defendant committed conspiracy to commit
forgery. State v. Estrada, 2016-NMCA-066, cert. denied.

Sufficient evidence of conspiracy to commit fraudulent use of a credit card. —
Where defendant was convicted of fourth-degree fraudulent use of a credit card (over
$500) and conspiracy to commit fraudulent use of a credit card, and where defendant
claimed that there was insufficient evidence to support her conviction for conspiracy,
arguing that the state did not present direct or circumstantial evidence from which the
jury could determine that an agreement was reached with another person, there was
sufficient circumstantial evidence to support the jury's determination that defendant
agreed with at least one other person to commit fraudulent use of a credit card where,
at trial, the state admitted into evidence the receipts for nine unauthorized credit card
transactions made over the course of five consecutive days and offered testimony that
defendant appeared in surveillance footage conducting one of the credit card
transactions and used the same job identifier for her purchase as did another
unauthorized user of the credit card in a separate transaction. From this evidence, a
rational jury could reasonably infer that there was some level of agreement and
coordination among the users of the credit card based on the use of the same job
identifier in multiple transactions, that defendant must have received the credit card
from another unauthorized user of the credit card because she used the credit card to
make a purchase one day after it was used in the first transaction by another person,
and that defendant must have given the credit card to another person who used the
credit card three more times in the two days after defendant used the credit card. State
v. Herrera, 2024-NMCA-025, cert. denied.

Sufficient evidence of conspiracy to commit first-degree murder. — Where
defendant was convicted of conspiracy to commit first-degree murder, and where the
state presented evidence at trial that defendant spent the day before the murder with
another man who had a motive to kill the victim, that defendant secured for himself and
the other man a ride to the apartment complex where the victim lived, that defendant
and the other man disappeared from sight before gunshots were heard, that defendant
and the other man were seen running back to their vehicle before driving off, and that
occupants of the vehicle testified that defendant smelled like burnt matches, which is
similar to the smell of gunpowder, there was sufficient evidence for a reasonable jury to
find that defendant was part of an agreement with one or more to murder the victim.
State v. Torres, 2018-NMSC-013.

Evidence sufficient. — Where defendant’s primary co-conspirator beat, drugged, and
tied the victim to a bed in defendant’s residence; defendant did not object to the
treatment of the victim; while the primary co-conspirator was absent from the residence
for a lengthy period of time, defendant watched the victim and did not assist the victim
or call the police; defendant did not object when the primary co-conspirator expressed
an intention to kill the victim and burn the victim’s car; defendant purchased charcoal
lighter fluid at the direction of the primary co-conspirator; defendant did not object when
defendant’s co-conspirators put the victim in the trunk of the victim’s car; and while
defendant remained at the residence, defendant’s co-conspirators used the lighter fluid
to burn the car and kill the victim, there was sufficient evidence to convict defendant of
conspiracy to commit kidnapping. State v. Bahney, 2012-NMCA-039, 274 P.3d 134,
cert. denied, 2012-NMCERT-003.

Where defendant’s friends asked defendant for a ride from a party; one of the friends
suggested that they go "do some shootings"; defendant agreed to the plan and drove to
the location of a trailer selected by the friend; the friend exited defendant’s vehicle and
fired three shots at the trailer; the owner of the trailer had recently moved from the
trailer, but kept some possessions in the trailer and parked two vehicles in front of the
trailer; and defendant claimed that defendant had no reason to know that the trailer was
occupied at the time of the shooting, the evidence was sufficient to prove that defendant
had the requisite intent to agree and the intent to commit shooting at a dwelling. State v.
Coleman, 2011-NMCA-087, 150 N.M. 622, 264 P.3d 523, cert. denied, 2011-NMCERT-
008, 268 P.3d 513.

Where there was evidence that defendant or accomplice or both assaulted victim and
split the money taken from the victim, this is sufficient evidence for the conviction of
conspiracy to commit a robbery. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123
P.3d 754, overruled on other grounds, State v. Frawley, 2007-NMSC-057, 143 N.M. 7,
172 P.3d 144.

The size, frequency and manner of the transactions were evidence sustaining
defendant's conviction for conspiracy with two others to traffic in heroin. State v. Armijo,
1976-NMCA-125, 90 N.M. 10, 558 P.2d 1149.

Review of the record indicates the existence of substantial evidence to support the jury
verdicts for conspiracy to commit fraud, and the evidence was such that the jury could
reasonably determine that defendants knowingly committed the offense of conspiracy to
commit fraud upon the district and state in excess of $20,000. State v. Crews, 1989-
NMCA-088, 110 N.M. 723, 799 P.2d 592, cert. denied, 109 N.M. 232, 784 P.2d 419.

Series of agreements. — The evidence was sufficient to convict defendant of separate
counts of conspiracy to commit murder, kidnapping and armed robbery, where the
evidence in the light most favorable to the state showed a distinct agreement to commit
each crime. State v. Reyes, 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948.

Tampering with evidence. — Where there is no evidence suggesting that defendant
encouraged his accomplice to dispose of the gun or was present when the accomplice
threw it away, there was insufficient evidence to support defendant's convictions for
tampering with evidence and conspiracy to tamper with evidence. State v. Armijo, 2005-
NMCA-010, 136 N.M. 723, 104 P.3d 1114.

Sufficient evidence of conspiracy to commit tampering with evidence. — Where
defendant was convicted of second-degree murder, tampering with evidence and
conspiracy to commit tampering with evidence, there was sufficient evidence to support
defendant's conviction for conspiracy to commit tampering with evidence where the
State sought to prove that defendant and another person by words or conduct agreed
together to commit tampering with evidence by destroying a vehicle linked to the
murder, and where the evidence at trial established that defendant drove the vehicle
away from the shooting, left it parked in an alley and contacted an unidentified person
who helped defendant obtain and pour gasoline on the vehicle and then start it on fire.
Based on this evidence, the jury rationally could have concluded that defendant and the
unidentified person who accompanied him to the gas station and the alley where the
vehicle was parked agreed by words or conduct to set the car on fire with the intent to
destroy evidence. State v. Chavez, 2022-NMCA-007, cert. granted.

Conspiracy to commit tampering with evidence conviction reversed where
conviction for underlying offense was reversed. — Where defendant was convicted
of conspiracy to commit tampering with evidence in the fourth degree, based on a
finding that defendant tampered with evidence of second degree murder, making the
tampering at issue a third degree tampering with evidence, and where the district court
erred in instructing the jury, thus requiring the reversal of defendant's second-degree
murder conviction, defendant's conviction for conspiracy to commit tampering with
evidence also required reversal, because the reversal of defendant's murder conviction
rendered the degree of tampering that was conspired to be committed indeterminate,
and where a jury does not find the level of the underlying offense, its determination that
the defendant tampered with evidence can only support a conviction for misdemeanor
tampering with evidence. This section only prohibits conspiracy to commit felonies, and
therefore conspiracy to commit a misdemeanor is not a crime in New Mexico. State v.
Chavez, 2022-NMCA-007, cert. granted.

Sufficient evidence. — Defendant’s appearance along with several other people in a
hardware store’s surveillance footage showing burglaries was sufficient circumstantial
evidence to show that defendant had agreed with at least one of the other people to
commit the burglaries to support defendant’s conviction for conspiracy to commit
burglary. State v. Gonzales, 2008-NMCA-146, 145 N.M. 110, 194 P.3d 725, cert.
denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488.

There was sufficient evidence to support defendant’s conviction for conspiracy to
commit first-degree murder where defendant testified that defendant incapacitated one
of the occupants of a cabin while defendant’s companions murdered and robbed the
other occupants of the cabin. State v. Nieto, 2000-NMSC-031, 129 N.M. 688, 12 P.3d
442.

Sufficient evidence of underlying crime(s). — Where the jury must determine which
of two underlying crimes is supported by evidence, as opposed to determining the
legality or constitutionality of the underlying crimes, a conviction for conspiracy will be
upheld, notwithstanding that one of the underlying crimes may not have been supported
by sufficient evidence. State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92,
aff'd in part, 1995-NMSC-077, 120 N.M. 740, 906 P.2d 731.

Evidence found sufficient for conviction. State v. Bankert, 1994-NMSC-052, 117
N.M. 614, 875 P.2d 370; State v. Sellers, 1994-NMCA-053, 117 N.M. 644, 875 P.2d
400, cert. denied, 118 N.M. 90, 879 P.2d 91; State v. Hernandez, 1997-NMCA-006, 122
N.M. 809, 932 P.2d 499.

Evidence was insufficient to support verdict of conspiracy to commit trafficking by
manufacture where the evidence established that there was a meth lab in the kitchen of
defendant's friend's trailer and additional meth lab equipment in a bedroom; that
defendant was present in the trailer, hiding in a closet in a different bedroom when the
meth lab was discovered; and that both defendant and his friend were present in the
trailer when the meth lab was discovered because the evidence did not lead to an
inference that defendant had an agreement with friend to commit the offense of
trafficking by manufacture. State v. Stefani, 2006-NMCA-073, 139 N.M. 719, 137 P.3d
659, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278.

Evidence that defendant used his truck to block the victim from leaving
defendant's property; that defendant told the other defendants involved in the beating
of the victim by telephone to "hurry up" because defendant did not know how long he
could hold the victim; that when the other defendants arrived, the defendant became
involved in the beating of the victim, permitted the jury to conclude that the defendants
shared an intent to hold the victim and then beat him. State v. Huber, 2006-NMCA-087,
140 N.M. 147, 140 P.3d 1096, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142
P.3d 360.

                       V.     INDICTMENT AND INFORMATION.

Sufficiency of indictment. — An indictment for conspiracy to commit perjury did not
need to specify the perjury defendant allegedly conspired to commit because the
offense of conspiracy was complete when the agreement was reached. State v.
Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234, aff'd in part, 1999-NMSC-
041, 128 N.M. 261, 992 P.2d 274.

Charging in alternative. — Where defendant was charged under two counts
enveloping a single conspiracy which violated two statutes, the trial court did not err in
refusing to dismiss either count as duplicitous, as although there was only one
conspiracy, the two counts alternatively charged the single conspiracy. State v. Ross,
1974-NMCA-028, 86 N.M. 212, 521 P.2d 1161.

Where the conspiracy to burglarize and vandalize an insured business involved acts not
covered by the arson statute (Section 30-17-5 NMSA 1978), that section was not a
special provision prohibiting the prosecution of defendant under Section 30-15-3 NMSA
1978 relating to damaging insured property, for the aspect of the conspiracy directed
toward burglary and vandalism. State v. Ross, 1974-NMCA-028, 86 N.M. 212, 521 P.2d
1161.

Law reviews. — For note, "Criminal Law - The Use of Transferred Intent in Attempted
Murder, a Specific Intent Crime: State v. Gillette," see 17 N.M.L. Rev. 189 (1987).

For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713
(1992).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 16 Am. Jur. 2d Conspiracy §§ 1 to 11.

Right of accused to bill of particulars, 5 A.L.R.2d 444.

Joint liability for slander, 26 A.L.R.2d 1031.

Liability for procuring breach of contract, 26 A.L.R.2d 1227, 96 A.L.R.3d 1294, 44
A.L.R.4th 1078.

Conviction or acquittal of attempt to commit particular crime as bar to prosecution for
conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Limitation of actions: when does statute of limitations begin to run against civil action or
criminal prosecution for conspiracy, 62 A.L.R.2d 1369.

Gambling, criminal conspiracies as to, 91 A.L.R.2d 1148.

Admissibility of statements of coconspirators made after termination of conspiracy and
outside accused's presence, 4 A.L.R.3d 671.

Jurisdiction to prosecute conspirator who is not in state at time of substantive criminal
act, for offense committed pursuant to conspiracy, 5 A.L.R.3d 887.
False testimony: actionability of conspiracy to give or procure false testimony or other
evidence, 31 A.L.R.3d 1423.

Impossibility: comment note on impossibility of consummation of substantive crime as
defense in criminal prosecution for conspiracy or attempt to commit crime, 37 A.L.R.3d
375.

Spouses, criminal conspiracy between, 74 A.L.R.3d 838.

Entrapment: availability of defense of entrapment where one accused of conspiracy
denies participation in offense, 5 A.L.R.4th 1128.

Prosecution or conviction of one conspirator as affected by disposition of case against
coconspirators, 19 A.L.R.4th 192.

Federal criminal liability of narcotics conspirator for different substantive crime of other
conspirator, 77 A.L.R. Fed. 661.

When is conspiracy continuing offense for purposes of statute of limitations under 18
USCS § 3282, 109 A.L.R. Fed. 616.