State v. Gonzalez-Feguredo

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 31,712 5 ALEXIS GONZALES-FEGUEREDO, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Kenneth H. Martinez, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM 11 Francine A. Baca-Chavez, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Bennett J. Baur, Acting Chief Public Defender 15 Carlos Ruiz de la Torre, Assistant Appellate Defender 16 Santa Fe, NM

17 for Appellant 18 MEMORANDUM OPINION 19 GARCIA, Judge.

1 {1} Defendant appeals from his conviction for criminal sexual penetration in the 2 second degree, contrary to NMSA 1978, Section 30-9-11(D) (2003, amended 2009). 3 On appeal, Defendant argues that the district court erred in: (1) excluding evidence of 4 Victim’s prior sexual history; (2) denying his request for a mistake of fact jury 5 instruction regarding Defendant’s knowledge of Victim’s age; (3) refusing to grant a 6 mistrial, or alternatively, to allow rebuttal testimony regarding a prior bad act of 7 Victim; (4) admitting evidence of Victim’s pregnancy; and (5) denying his motion for 8 directed verdict. Defendant further alleges that he received ineffective assistance of 9 counsel. We affirm. 10 BACKGROUND 11 {2} On May 25, 2007, Victim spent the night at her Aunt’s house. Defendant, the 12 long-time boyfriend of Victim’s Aunt, also spent the night. During the night, 13 Defendant went into the living room where Victim was sleeping, pulled off her pants, 14 placed his hand over her mouth, and proceeded to penetrate her vaginally. At the time, 15 Victim was sixteen years old, and Defendant was approximately forty. Following trial, 16 a jury convicted Defendant of criminal sexual penetration of a minor between the ages 17 of thirteen and eighteen, a second degree felony offense. Defendant timely appealed 18 his conviction to this Court. Because this is a memorandum opinion and because the 19 parties are familiar with the factual and procedural background in this case, we will 20 include any further factual information in each issue as it is discussed.

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1 DISCUSSION 2 I. Evidentiary rulings 3 {3} Defendant appeals several of the district court’s evidentiary rulings. “We 4 review the admission of evidence under an abuse of discretion standard and will not 5 reverse in the absence of a clear abuse.” State v. Sarracino, 1998-NMSC-022, ¶ 20, 6 125 N.M. 511, 964 P.2d 72. “We cannot say the [district] court abused its discretion 7 by its ruling unless we can characterize it as clearly untenable or not justified by 8 reason.” State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal 9 quotation marks and citation omitted). 10 A. Victim’s Prior Sexual Conduct 11 {4} We first address Defendant’s argument that the district court erred in denying 12 his Rule 11-413 NMRA (2010) (current version at Rule 11-412 NMRA (2012)) 13 motion to present evidence that Victim had a history of sneaking out of her house at 14 night to engage in sexual activity with older men. The district court ruled that the 15 requested prior sexual conduct evidence was not relevant and was inadmissible. 16 Defendant contends that the proposed evidence was relevant to establish Victim’s 17 motive to fabricate rape in order to hide her sexual activity from her parents. 18 {5} NMSA 1978, Section 30-9-16(A) (1993) precludes evidence of a rape victim’s 19 past sexual conduct, unless “the evidence is material to the case and . . . its 20 inflammatory or prejudicial nature does not outweigh its probative value.” Id. Rule

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1 11-413(A) (2010) is consistent with this statutory counterpart. We consider whether 2 the district court should have reasonably excluded the evidence after considering a 3 five-factor test: “(1) whether there is a clear showing that the complainant committed 4 the prior acts; (2) whether the circumstances of the prior acts closely resemble those 5 of the present case; (3) whether the prior acts are clearly relevant to a material issue, 6 such as identity, intent, or bias; (4) whether the evidence is necessary to the 7 defendant’s case; [and] (5) whether the probative value of the evidence outweighs its 8 prejudicial effect.” See State v. Johnson, 1997-NMSC-036, ¶ 27, 123 N.M. 640, 944 9 P.2d 869. 10 {6} During the pretrial hearing on the State’s motion in limine, Defendant argued 11 that the evidence was material and relevant on the issue of credibility because Victim 12 gave a pretrial interview claiming “she was a virgin on the date of [the] incident[,]” 13 but that evidence of her “sneaking out” and having encounters with “a boyfriend” 14 established that Victim “knew more about the details of sex than she claimed.” The 15 State responded that none of the pretrial testimony, witness statements, interviews, 16 transcripts or tapes established “that the [V]ictim was promiscuous, [or] that the 17 [V]icitm was not a virgin.” “As a matter of fact, all the evidence from the witnesses 18 that has been obtained is exactly the contrary, that [Victim] was not a promiscuous 19 person.” Defendant responded that “she would sneak out of her house, that she would 20 not come back . . . until the earlier hours of the morning, [and] that she would brag

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1 about these instances.” “We can put on several witnesses that say there were many 2 prior acts, if the State wants us to.” But Defendant’s carefully worded allegation that 3 interviewed witnesses would testify that Victim snuck out of her house at night to see 4 men does not establish evidence of sexual activity, or promiscuity, or substantively 5 rebut Victim’s pretrial statement that she was a virgin on the date of the incident. See 6 id. (noting that rape shield laws were designed to restrict attempts to show a victim 7 had consented on this occasion because she had consented on other occasions). 8 {7} If Defendant was intending to make an offer of proof to the contrary, he failed 9 to do so, and he failed to identify any witness statement to support his insinuations. 10 The nature of the prior encounters that assume sexual activity were neither sufficiently 11 developed to show that they were materially relevant to any credibility determination 12 nor sufficiently probative so as to overcome the prejudicial effect on a victim of 13 sexual assault that Rule 11-413(A) (2010) was implemented to protect. This is 14 especially significant given that the State alleged forcible rape, not a consensual 15 sexual encounter between Defendant and the sixteen-year-old Victim. Having failed 16 to present a sufficient argument that the previous incidents involved sexual activity 17 or similar circumstances to the incident in the present appeal, the district court did not 18 abuse its discretion when it determined that Defendant had not met the five-factor test 19 set forth in Johnson and granted the State’s motion in limine. 20 {8} Defendant also alleges that Victim’s prior activities of sneaking out of the house

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1 to have late night encounters with men was relevant to establish Victim’s motive to 2 fabricate the incident of forcible rape by Defendant. “Motive to fabricate is a theory 3 of relevance that does implicate the right of confrontation. A [district] court would be 4 entitled to determine that the prejudicial effect of prior sexual conduct evidence . . . 5 would not outweigh the probative value of evidence of a motive to fabricate.” 6 Johnson, 1997-NMSC-036, ¶ 29. As previously discussed, Defendant failed to show 7 the necessary relevance of Victim’s prior acts of sneaking out of the house at night to 8 see men so as to establish sexual promiscuity or to attack Victim’s credibility. Id. ¶ 9 32 (“[I]n order to enable the [district] court to perform its role in identifying a theory 10 of relevance prior to balancing probative value against prejudice, a defendant must 11 show sufficient facts to support a particular theory of relevance.”). 12 {9} The record demonstrates that Defendant’s theory of relevance was based solely 13 on the credibility of Victim’s testimony about forcible rape, and the district court was 14 never asked to rule upon whether the alleged promiscuous activity was relevant to 15 support the defense of fabrication. See State v. Stephen F., 2008-NMSC-037, ¶ 12, 16 144 N.M. 360, 188 P.3d 84 (holding that the rape shield laws were designed to 17 prohibit admitting evidence of prior sexual acts where the defendant’s theory is that 18 the victim “fabricated the rape charge because she did not want to be punished, and 19 her fear of parental punishment arises from the mere fact of engaging in premarital 20 sex, not from any purported similarity between the type of premarital sex”). Even so,

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1 in order to admit such evidence, Defendant still would have been required to 2 demonstrate that Victim’s prior conduct of sneaking out of the house was both 3 material and that its prejudicial effect does not outweigh its probative value. Johnson, 4 1997-NMSC-036, ¶ 41. Based on the record before us, we conclude that Defendant 5 failed to make the necessary showing of relevancy regarding a fabrication defense. 6 As such, the district court did not abuse its discretion in holding that the evidence of 7 Victim sneaking out of the house was irrelevant and inadmissible. See Stephen F., 8 2008-NMSC-037, ¶ 8 (reiterating that the appellate courts review a district court’s 9 decision to the then-current version of Rule 11-413 under an abuse of discretion 10 standard). 11 B. Victim’s Pregnancy 12 {10} Defendant argues that it was error for the district court to permit the State to 13 present testimony that Defendant was the father of Victim’s child without an adequate 14 scientific foundation to establish that the child was conceived on the date of the rape. 15 Defendant further asserts that this evidence was irrelevant, confusing, or misleading 16 under Rule 11-401 NMRA and more prejudicial than probative under Rules 11-403 17 and 11-404(B) NMRA. The State responds that Victim’s pregnancy was relevant to 18 the crime charged and that the date of conception was a disputed factual question for 19 the jury to consider and resolve. 20 {11} On appeal, Defendant’s argument is not well-developed and fails to put forward

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1 any specific authority addressing the merits of this argument. See State v. Aragon, 2 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (recognizing that it is the 3 appellant’s burden to clearly demonstrate error on appeal). Defendant’s argument 4 begins with two relevancy objections and quickly transitions into a “relation-back” 5 argument about establishing a scientific foundation for the date when a baby is 6 conceived. However, the undisputed facts establish that the sexual assault was alleged 7 to have occurred at the end of May 2007, the baby was born in January 2008, and the 8 baby was approximately six weeks premature. The paternity test was offered to 9 establish that Defendant was the father of Victim’s baby. The court recognized that 10 the date of the alleged conception was “within the ballpark” of a reasonable time 11 frame to correspond to the date of birth and that the jury, using common sense, must 12 determine whether the child was conceived on any particular date at issue. See Mott 13 v. Sun Country Garden Prod., Inc., 1995-NMCA-066, ¶ 34, 120 N.M. 261, 901 P.2d 14 192 (“[I]f the fact in issue is within the ken of the average lay juror, expert opinion 15 testimony is not necessary.”). 16 {12} Effectively, Defendant argues that expert testimony is required in order to 17 establish the typical nine-month gestation period and the jury cannot rely on its 18 common knowledge to make this factual determination. Conversely, without expert 19 testimony, Defendant asserts that any potential relation-back from the date of birth to 20 the date of the alleged rape cannot be adequately established and is legally

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1 impermissible. Defendant failed to provide the district court or this Court with any 2 authority for his argument that expert testimony is required to establish a typical nine- 3 month gestation period and that the jury cannot rely on its common knowledge to 4 make this factual determination. State v. Vandever, 2013-NMCA-002, ¶ 19, 292 P.3d 5 476 (“When a party does not cite authority to support an argument, we may assume 6 no such authority exists.”), cert. denied, 2012-NMCERT-011, 297 P.3d 1226; see 7 State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 (“When a 8 criminal conviction is being challenged, counsel should properly present [the appellate 9 courts] with the issues, arguments, and proper authority.”). We therefore hold that the 10 district court properly acted within its discretion when it allowed the jury to use its 11 common knowledge to determine whether Victim’s child was born within a gestation 12 period that would reasonably relate back to the date in question. 13 Rebuttal Testimony Regarding Victim’s Prior Bad Conduct 14 {13} Defendant contends that the testimony elicited during the State’s cross- 15 examination of a defense witness inferred that the witness had previously had sex with 16 Defendant for money. Defendant argues that the district court should have granted his 17 motion for mistrial after the State elicited this testimony of Defendant’s prior bad acts 18 and inappropriate conduct. Defendant alternatively asserts that he should have been 19 permitted to counter this evidence with Rule 11-404(B) testimony to establish prior 20 bad act evidence of Victim. Like evidentiary rulings, we review a district court’s

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1 denial of a motion for mistrial under an abuse of discretion standard. See State v. 2 Gonzales, 2000-NMSC-028, ¶ 35, 129 N.M. 556, 11 P.3d 131, overruled on other 3 grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110. 4 {14} During direct examination of Victim’s cousin Regina S., Defendant elicited 5 testimony that Victim had a reputation in the community for being untruthful. On 6 cross-examination of Regina, the State attempted to show witness bias by asking about 7 previous contact between Regina and Defendant. Regina mentioned a specific incident 8 where Defendant and she were in a car together, and she asked Defendant to lend her 9 money. Defendant did not object to this testimony by Regina during cross- 10 examination. Later, Defendant argued that this testimony by Regina implied that 11 Defendant was paying her for sex and was inadmissible pursuant to the district court’s 12 pretrial ruling that addressed Defendant’s sexual infidelity. As a result, defense 13 counsel requested a mistrial. Defense counsel alternatively argued that, on redirect 14 examination of Regina, the district court should permit Defendant to elicit testimony 15 of a specific incident where Victim allegedly had sex with Defendant at a motel while 16 Regina babysat their child in the bathroom. 17 {15} The district court denied the motion for mistrial and did not allow defense 18 counsel to question Regina regarding the single incident where Victim allegedly 19 prostituted herself to Defendant at a motel after their child was born. The court had 20 previously explained that this line of questioning was “entirely inappropriate” and

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1 “that its probative value is nil.” The court then gave a limiting instruction that the jury 2 was to entirely disregard the testimony and evidence presented regarding the incident 3 where Regina was found in a vehicle with Defendant. 4 {16} Defendant contends on appeal that “the testimony in question was highly 5 prejudicial as it placed within consideration of the jury the idea that [Defendant] may 6 have paid for sex with another young woman.” Defendant argues that this testimony 7 was improperly and intentionally elicited by the State. 8 {17} Our review of the record reveals no impropriety with the State’s line of 9 questioning to Regina. To show possible bias, the State elicited limited testimony 10 from Regina that she had tried to borrow money from Defendant. Specifically, the 11 prosecutor never asked Regina if she had sexual relations with Defendant or made any 12 reference to any exchange of money for sex. If the implication that Regina and 13 Defendant had a sexual relationship was raised at all, it was raised by defense 14 counsel’s redirect examination question asking Regina if she had ever met Defendant 15 at a motel. If the contested testimony should not have been admitted, the district 16 court’s limiting instruction to disregard the testimony was sufficient to alleviate any 17 prejudicial effect arising from its previous admission. State v. Vialpando, 1979- 18 NMCA-083, ¶ 25, 93 N.M. 289, 599 P.2d 1086 (“New Mexico has frequently held 19 that a prompt admonition from the court to the jury to disregard and not consider 20 inadmissible evidence sufficiently cures any prejudicial effect which otherwise might

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1 result.”); see State v. Foster, 1998-NMCA-163, ¶¶ 23-25, 126 N.M. 177, 967 P.2d 2 852. The district court did not abuse its discretion when it determined that the 3 previous testimony by Regina had not irreparably tainted the jury so as to require a 4 mistrial. 5 {18} Defendant’s secondary argument is that the district court erred when it refused 6 to allow him to “fight fire with fire” by rebutting the contested testimony regarding 7 Defendant’s possible sexual encounter with Regina through testimony of Victim’s 8 prior sexual acts. This argument is equally without merit. The doctrine of curative 9 admissibility allows the admission of otherwise inadmissible evidence when the 10 evidence is used to rebut and counterbalance incompetent evidence. State v. Ruiz, 11 2001-NMCA-097, ¶ 47, 131 N.M. 241, 34 P.3d 630. On appeal, Defendant has failed 12 to demonstrate how unrelated evidence of Victim’s alleged subsequent sexual conduct 13 would counterbalance any inference that Regina may have attempted to borrow money 14 from Defendant in exchange for sex. As such, the district court did not abuse its 15 discretion when it refused to allow Defendant to elicit potential testimony regarding 16 Victim’s otherwise inadmissible sexual conduct. Ruiz would not be the appropriate 17 procedural remedy to apply under the circumstances in this case. The curative 18 instruction given by the court was adequate to address any alleged impropriety that 19 the State may have drawn out during Regina’s testimony. The district court did not 20 abuse its discretion in refusing the prejudicial rebuttal testimony and giving a curative

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1 instruction. 2 II. Mistake of Fact Jury Instruction 3 {19} Defendant argues that the district court erred in not providing the jury with a 4 mistake of fact instruction where a defense witness testified that he believed Victim 5 was eighteen years old. In light of this alleged error, Defendant requests a new trial. 6 This Court reviews de novo a district court’s denial of a requested jury instruction. 7 State v. Lucero, 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143. 8 {20} Defense witness, Berzeyahir Molina testified that he met Victim when she was 9 sixteen. At that time, Molina believed Victim was eighteen because of her attitude and 10 physical appearance. Victim never told Molina that she was eighteen. Based on 11 Molina’s testimony, Defendant requested a mistake of fact jury instruction based on 12 a reasonable belief that Victim was eighteen. The State argued that, absent any 13 evidence as to Defendant’s belief regarding Victim’s age, Molina’s belief could not 14 be transferred to Defendant. The district court denied the requested mistake of fact 15 instruction. After reviewing State v. Gonzales, 1983-NMCA-041, 99 N.M. 734, 663 16 P.2d 710, the court explained that “[t]here is no evidence in the record that would 17 support giving an instruction on mistake of fact because the only evidence in the 18 record is that [Victim] in this matter was awakened and forcibly sexually assaulted.” 19 The district court further reasoned that a mistake of fact instruction would “raise a 20 false issue before the jury” because, even if Victim appeared to be of legal age, there

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1 was no evidence that the sexual encounter was consensual. 2 {21} Defendant argues that the rule in New Mexico is that if there is any evidence 3 to support his theory of defense, he is entitled to an appropriate instruction. However, 4 Defendant relied solely on the fact that, prior to the incident involving Defendant, 5 Molina believed Victim to be eighteen. Despite his failure to testify, Defendant 6 contends that this testimony was sufficient to support his own belief that Victim was 7 eighteen years old at the time of the sexual encounter. See Perez v. State, 8 1990-NMSC-115, ¶ 11, 111 N.M. 160, 803 P.2d 249 (recognizing that criminal sexual 9 penetration of a child between the ages of thirteen and sixteen was not a strict liability 10 crime and that a defendant’s ignorance or mistake of fact about a child’s age is a 11 potential defense). 12 {22} “A defendant is entitled to a jury instruction that supports his theory of the 13 defense only if the instruction is supported by the evidence.” State v. Cavanaugh, 14 1993-NMCA-152, ¶ 12, 116 N.M. 826, 867 P.2d 1208. Not only does this lack of 15 evidence regarding Defendant’s own belief of Victim’s age fail to support the giving 16 of a mistake of fact instruction, but “the only evidence in the record is that [Victim] 17 in this matter was awakened and forcibly sexually assaulted” without her consent. 18 Defendant’s asserted mistake of fact would serve as a defense to justify his conduct 19 only if Defendant and Victim had a consensual sexual encounter. Gonzales, 20 1983-NMCA-041, ¶ 14 (“To entitle himself to an instruction on mistake of fact, there

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1 must be some evidence that at the time in question, [the] defendant entertained a belief 2 of fact that, if true, would make his conduct lawful.” (emphasis added)). Even if 3 evidence had been offered to show that Defendant had a reasonable belief in 2007 that 4 Victim was of an age where she could legally consent to a sexual encounter, the 5 district court was not required to instruct the jury on a mistake of fact instruction 6 because there was no evidence presented that the sexual encounter in this case was 7 consensual. The district court did not err in refusing Defendant’s mistake of fact 8 instruction. 9 III. Directed Verdict 10 {23} We next address Defendant’s argument that the district court should have 11 granted his motion for directed verdict. “The question presented by a directed verdict 12 motion is whether there was substantial evidence to support the charge.” State v. 13 Coleman, 2011-NMCA-087, ¶ 19, 150 N.M. 622, 264 P.3d 523 (internal quotation 14 marks and citation omitted). “Specifically, we inquire whether substantial evidence 15 exists of either a direct or circumstantial nature to support a verdict of guilty beyond 16 a reasonable doubt with respect to each element of the crime.” Id. (internal quotation 17 marks and citation omitted). “We do not weigh evidence or substitute our judgment 18 for that of the [district] court so long as the jury was presented with such relevant 19 evidence as a reasonable mind might accept as adequate to support its verdict.” Id. 20 (alteration, internal quotation marks, and citation omitted). We review the evidence

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1 in the light most favorable to the prevailing party. Rojo, 1999-NMSC-001, ¶ 19. 2 {24} To convict Defendant of criminal sexual penetration of a child thirteen to 3 eighteen by the use of coercion by a person in a position of authority, the State had to 4 prove, in relevant part, that Defendant was able to exercise undue influence over 5 Victim by reason of his relationship with her, that Defendant used this authority to 6 coerce Victim to submit to sexual contact, and that Defendant unlawfully caused 7 Victim to engage in sexual intercourse. Defendant asserts on appeal that there was 8 insufficient evidence that Defendant caused Victim to engage in sexual intercourse or 9 that he had a position of authority over her and used his position to force her to have 10 intercourse. However, Defendant’s appellate argument ignores the evidence favorable 11 to his conviction and refers only to evidence presented through the testimony of 12 defense witnesses. 13 {25} Defendant’s argument essentially states that the district court should have 14 resolved the parties’ conflicting assertions of fact in his favor. But we defer to the 15 district court to resolve the conflicts in the evidence, to weigh the facts, and to 16 determine the credibility of the witnesses. Buckingham v. Ryan, 1998-NMCA-012, ¶ 17 10, 124 N.M. 498, 953 P.2d 33 (“[W]hen there is a conflict in the testimony, we defer 18 to the trier of fact.”); State v. Roybal, 1992-NMCA-114, ¶ 9, 115 N.M. 27, 846 P.2d 19 333 (“It was for the [district] court as fact[]finder to resolve any conflict in the 20 testimony of the witnesses and to determine where the weight and credibility lay.”).

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1 Contrary evidence does not provide a basis for reversal because the factfinder is free 2 to reject Defendant’s version of the facts. Rojo, 1999-NMSC-001, ¶ 19. The evidence 3 presented established that Victim first met Defendant when she was a baby, that he 4 attended important family events throughout Victim’s childhood, that he was like an 5 uncle to Victim, and considered part of the family by Victim’s mother and her 6 husband. Viewing this evidence in the light most favorable to the jury’s verdict, we 7 conclude that the evidence was sufficient to establish each of the contested elements 8 of criminal sexual penetration and the denial of Defendant’s motion for a directed 9 verdict of acquittal. 10 {26} The district court was in the best position to evaluate the evidence presented 11 and the credibility of the parties, and the record reflects that substantial evidence 12 supported Defendant’s conviction. We, therefore, affirm the district court’s denial of 13 Defendant’s motion for directed verdict. 14 IV. Ineffective Assistance of Counsel 15 {27} Pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, 16 and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant argues 17 that he received ineffective assistance of defense counsel. “The test for ineffective 18 assistance of counsel is whether defense counsel exercised the skill of a reasonably 19 competent attorney.” State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 20 384. Establishing a prima facie case of ineffective assistance of counsel requires a

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1 defendant to show that: “(1) counsel’s performance was deficient in that it fell below 2 an objective standard of reasonableness; and (2) that [the d]efendant suffered 3 prejudice in that there is a reasonable probability that, but for counsel’s unprofessional 4 errors, the result of the proceeding would have been different.” Id. (internal quotation 5 marks and citation omitted). We do not hold that ineffective assistance of counsel 6 exists if there is a plausible, rational trial strategy or tactic to explain counsel’s 7 conduct. See State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289; 8 State v. Roybal, 2002-NMSC-027, ¶ 21, 132 N.M. 657, 54 P.3d 61. “When an 9 ineffective assistance claim is first raised on direct appeal, we evaluate the facts that 10 are part of the record. If facts necessary to a full determination are not part of the 11 record, an ineffective assistance claim is more properly brought through a habeas 12 corpus petition[.]” Roybal, 2002-NMSC-027, ¶ 19. Remand for an evidentiary hearing 13 is the proper remedy only when the defendant makes a prima facie case of ineffective 14 assistance. Id. 15 {28} Defendant concedes on appeal that there are not enough facts in the record to 16 evaluate this claim of ineffective assistance of counsel. As such, an evidentiary 17 hearing is not an appropriate remedy because Defendant has failed to establish a prima 18 facie case of ineffective assistance of counsel based on the district court record. See 19 id. Defendant must pursue the issue, if at all, in a collateral habeas corpus proceeding. 20 See State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (“This

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1 Court has expressed its preference for habeas corpus proceedings over remand when 2 the record on appeal does not establish a prima facie case of ineffective assistance of 3 counsel.”); see also State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 4 776 (“A record on appeal that provides a basis for remanding to the [district] court for 5 an evidentiary hearing on ineffective assistance of counsel is rare. Ordinarily, such 6 claims are heard on petition for writ of habeas corpus . . . .”). We therefore deny this 7 claim on direct appeal. 8 III. CONCLUSION 9 {29} For the foregoing reasons, we affirm Defendant’s conviction. 10 {30} IT IS SO ORDERED.

11 ___________________________________ 12 TIMOTHY L. GARCIA, Judge

13 WE CONCUR:

14 ____________________________ 15 JONATHAN B. SUTIN, Judge

16 ____________________________ 17 MICHAEL E. VIGIL, Judge