The court found "that the circumstances of the original statement, the proximity in time to the shooting itself, all are indicia of reliability in that statement." {28} As the State notes, Defendant's argument regarding whether he may assert on appeal that Rule 11-801 prohibits admission of this evidence in spite of the fact that it was admitted by the trial court under Rule 11-803 was addressed in State v. Padilla, 118 N.M. 189, 197, 879 P.2d 1208, 1216 (Ct.App. 1994). In Padilla, the Court of Appeals held that the prior statements were properly admitted under Rule 11-803(E) and stated:
Armstrong also points to a decision of the New Mexico Court of Appeals, which held a sentence-enhancement statute based on the use of a firearm did not apply to the offense of conspiracy because “conspiracy is an initiatory crime which involves no physical act other than communication.” State v. Padilla, 118 N.M. 189, 879 P.2d 1208, 1212 (App.1994). He cites no Arizona authority interpreting Arizona's weapons-misconduct statute, A.R.S. § 13–3102(A)(8), in a like manner.
The evidence Baldonado presents falls short. {15} The cases on which Baldonado relies, such as State v. Padilla, 118 N.M. 189, 879 P.2d 1208 (Ct.App. 1994), and Rael v. Cadena, 93 N.M. 684, 604 P.2d 822 (Ct.App. 1979), are not persuasive. In both of those cases, there was more evidence that the non-active person was a full participant in the unlawful behavior.
The district court did not abuse its discretion in ruling that the evidence was admissible to prove motive. See State v. Padilla , 1994-NMCA-067, ¶ 17, 118 N.M. 189, 879 P.2d 1208 (holding that evidence of the defendant's possession of a syringe was relevant to motive for a robbery). Moreover, the evidence did not unduly prejudice Defendant because, in his opening statement, he admitted that he was a methamphetamine user.
The instruction therefore properly focused the jury on the agreement, which we have held " 'is the gist of the crime' " of conspiracy. See Baca, 1997-NMSC-059, ¶ 46 (quoting State v. Padilla, 1994-NMCA-067, ¶ 10, 118 N.M. 189, 879 P.2d 1208). The evidence supporting Defendant's role as an accessory thus extended well beyond the evidence of the agreement to murder Victim, which was complete at or before the moment when Defendant handed Alejandro the gun.
The Padilla court's reasoning persuades us. Because an unlawful agreement is the essence of the crime of conspiracy and because in Nevada conspiracy is committed upon reaching the unlawful agreement, we conclude that Moore could not "use" a deadly weapon to commit the crime of conspiracy for purposes of the deadly weapon enhancement. State v. Padilla, 879 P.2d 1208, 1212 (N.M.Ct.App. 1994). The State next urges us to recognize that there may be unusual circumstances in which deadly weapons may be "used" to conspire.
Two factors which appellate courts consider in this context are the extent to which the movant used due diligence to obtain the testimony and the probable value of that testimony.See State v. Padilla, 118 N.M. 189, 198, 879 P.2d 1208, 1217 (Ct.App. 1994) (holding that the trial court did not abuse its discretion in denying a motion to reopen the case "[i]n view of Defendants' failure to use due diligence to obtain [a witness's] attendance and the minimal value of the proffered testimony" where defendants did not reveal the witness's name or subpoena him until after the first day of trial, creating scheduling conflicts with the witness). {57} Defendant's trial counsel was clearly aware that the State was using polygraph expert testimony and did not attempt to secure the rebuttal polygrapher to testify until after the close of evidence in this case.
Baca, 1997-NMSC-059, ¶ 46 (citations and internal quotation marks omitted). {29} "An agreement is the gist of the crime of conspiracy . . . ."State v. Padilla, 118 N.M. 189, 193, 879 P.2d 1208, 1212 (Ct.App. 1994). The State presented testimony that Sarracino participated in beating Nelson with at least four other people at two different locations.
"An agreement is the gist of the crime. . . ." State v. Padilla, 1994 NMCA 070, 118 N.M. 189, 193, 879 P.2d 1208, 1212. "[T]he crime is complete when the felonious agreement is reached." Id. (quoting State v. Leyba, 93 N.M. 366, 367, 600 P.2d 312, 313 (Ct.App. 1979)).
(39) The criminal agreement is the gist of the crime of conspiracy. State v. Padilla, 1994 NMCA 070, ¶ 10, 118 N.M. 189, 193, 879 P.2d 1208, 1212 (holding that the firearm sentencing enhancement does not apply to a conspiracy sentence). A conspiracy is complete when the agreement is entered.