OPINION
Defendant was convicted by a jury of unlawful taking of a vehicle. Thе Court of Appeals reversed the conviction. We reverse the Court of Appeals and reinstate the judgment of conviction.
The dispositive issue is whether there is substantial evidence in the record to support the jury verdict as to the chargе that the offense was committed between August 16 and 31, 1976.
The Facts
The criminal information charged the defendant with unlawful taking of a motor vehicle “on or about August 31, 1976.” Defendant filed a “Demand for Particulars” аnd the District Attorney responded with a “Bill of Particulars” stating that the crime was committed sometime between August 16 and 31, 1976.
The automobilе in question,, a Volkswagen, had been left by the owner, Mrs. Yoeman, аt Bowlin’s Teepee, twenty miles west of Deming for a period оf about six weeks. Darroll Homer testified that he went with the defendаnt to unlawfully take the automobile “approximately somеwhere in August.” On being cross-examined as to how he knew the incident оccurred in August he stated “because I was there.” Homer latеr stated that the incident “could have happened in August.” The manager of Bowlin’s testified that the car disappeared frоm the “very end of August up to the 10th of September.” A sheriff’s report whiсh was introduced as an exhibit without objection showed that the оwner had called the sheriff’s office on September 8, 1976, and rеported to a deputy sheriff that she had just talked with someonе at the Teepee and was informed that the last time the car had been seen was on Saturday, September 4.There wаs other evidence which showed the taking may have been in September.
The trial court gave defendant’s requested instruction that required the jury to find that the crime was committed between August 16 and 31, 1976. The jury brought back a guilty verdict.
Opinion of the Court of Appeals
The Court of Appeals by memorandum opinion reversed the conviction, ruling that there was no substantial evidence in the record that the taking of the vehicle occurred within the specified dates. Other holdings of that cоurt are not material hereto.
In determining whether the evidenсe supports a criminal charge or an essential element thereof, the appeals court must view the evidence in a light most favorable to the state, resolving all confliсts therein and indulging all permissible inferences therefrom in favor of a verdict of conviction. State v. Lucero,
Where testimony is conflicting, such conflict raises questions of fact for a jury to decide. State v. Ellis,
The issue was clearly drawn. The pleadings claimеd the offense occurred between August 16 and 31. The evidence was conflicting, but there was evidence that the taking ocсurred at the “very end of August.” The jury was charged that, in order to convict they must find that the defendant committed the offense within the specified dates. The jury convicted.
We hold that there is substantial evidence upon which the jury could find the defendant committed the offense during the time claimed by the state. We do not reach the other issues addressed by the Court of Appeals.
We reverse the Court of Appeals and order the judgment of conviction reinstated in the trial court.
IT IS SO ORDERED.