This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3 v. No. A-1-CA-36210 4 EMERSON HAPPY, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John Dean, Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Nina Lalevic, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 HANISEE, Judge. 172 {1} Defendant Emerson Happy appeals from hi s convictions of aggravated battery 1 with a deadly weapon. We previouslyissued a notice of proposed summary 2 disposition in which we proposed to affirm. Defendant has filed a memorandum in 3 opposition. After due consideration, we re main unpersuaded. We therefore affirm. 4 {2} The pertinent background information wa s set forth in our notice of proposed 5 summary disposition. We will avoid undue repetition here, and focus instead on the 6 content of the memorandum in opposition. 7 {3} In the memorandum in opposition, Defe ndant acknowledges that one of the 8 victims testified that a photograph introducedinto evidence was of the attacker, and 9 that a police officer who responded to, and communicated with Defendant at, the 10 crime scene testified that the same photogr aph was of Defendant as he appeared on 11 the day of the incident. [MIO 3] Nevertheless, Defendant reiterates his position that 12 the State presented insuffici ent evidence that he was th e individual who committed the 13 charged crimes. [MIO 5] We disagree. Taken together, the testimony of the victim and 14 the officer are sufficient for a rational trier of fact to find the element of identity 15 beyond a reasonable doubt. See State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 16 N.M. 711, 998 P.2d 176 (“The relevant ques tion is whether, after viewing the 17 evidence in the light most favorable to the prosecution, any rational trier of fact could 183 have found the essential elements of the crime beyond a reasonable doubt.” 1 (alteration, internal quotation marks, and citation omitted)). Therefore, we affirm. 2 {4} In addition, the memorandum in opposition for the first time on appeal 3 challenges the sufficiency of the State’s ev idence with respect to the other elements 4 of Defendant’s convictions. [MIO 4-5] We construe Defendant’s argument as a 5 motion to amend the docketing statement and deny the same. See State v. Moore , 6 1989-NMCA-073, ¶¶ 44-45, 109 N.M. 119, 782 P.2d 91 (“[W]e should deny motions 7 to amend that raise issues that are not viable.”) superseded by ru le on other grounds 8 as recognized in State v. Salgado , 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 9 730. Defendant acknowledges that evidence was presented that the altercation 10 commenced with him yelling racial slurs at the victims, after wh ich he ran towards 11 them, unsuccessfully swung his fist twice at the first victim, and eventually hit him. 12 [MIO 2; DS 2] A physical fight erupted be tween the two men, by the end of which the 13 first victim was stabbed se veral times and ultimately su ffered a collapsed lung. [MIO 14 2; DS 3] The second victim tried to restrain Defendant by hugging him and was 15 likewise stabbed in the process. [MIO 2] This evidence is suffi cient for a reasonable 16 fact-finder to conclude that Defendant intentionally applied force to the persons of the 17 two victims while using a kni fe as a deadly weapon. See Cunningham , 18 2000-NMSC-009, ¶ 26. While De fendant asserts that “[n]o evidence established who 194 the first aggressor might have been[,]” healso acknowledges that one of the victims 1 testified that Defendant “swung first[.]” [M IO 5] Likewise, while asserting that the 2 evidence was unclear as to whether or not he “wielded a knife at any time during the 3 altercation[,]” Defendant ac knowledges that one of the victims testified that he 4 observed Defendant stab the second victim. [MIO 2] Therefore, we deny Defendant’s 5 motion to amend the docketing statement to raise additional challenges to the 6 sufficiency of the evidence. 7 {5} Lastly, Defendant has moved to ame nd the docketing statement to raise an 8 ineffective assistance of counsel claim. [MIO 1-2, 5-10] Specifically, Defendant 9 asserts that his attorney was ineffective in withdrawing a request for a self-defense 10 jury instruction once Defendant decided not to testify in his de fense. [MIO 5] Because 11 we conclude that this issue is notviable, we deny Defendant’s motion. See Moore , 12 1989-NMCA-073, ¶¶ 44-45. 13 {6} “To evaluate a claim of ineffective assistance of counsel, we apply the 14 two-prong test in Strickland v. Washington , 466 U.S. 668, 687 (1984).” State v. Dylan 15 J. , 2009-NMCA-027, ¶ 36, 145 N.M.719, 204 P. 3d 44. “That test places the burden 16 on the defendant to show th at his counsel’s performance was deficient and that the 17 deficient performance prejudiced his defense.” Id. “[I]f on appeal wecan conceive of 18 a reasonable trial tactic wh ich would explain the counsel ’s performance, we will not 195 find ineffective assistance.” State v. Roybal , 2002-NMSC-027, ¶ 21, 132 N.M. 657, 1 54 P.3d 61. 2 {7} Defendant asserts that a self-defense instruction was warranted even without 3 his testimony because the officer who identified Defendant in the photograph further 4 testified that Defendant toldhim that he had been att acked by the two victims. [MIO 5 7] See State v. Brown , 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69 (“When 6 evidence at trial supports the giving of an instruction on a defendant’s theory of the 7 case, failure to so instruct is reversib le error.”). While De fendant acknowledges that 8 his attorney may have “made the choice to drop self-defensein favor of the theory of 9 lack of identification[,]” [MIO 7] Defe ndant maintains that such strategy was not 10 reasonable, because “[t]he two defenses were not c ontradictory.” [MIO 8] We 11 disagree. Both defenses hinged on the te stimony of the same officer; Defendant’s 12 attorney could have reasonably concluded that asking the juryto believe this witness’s 13 statement that Defendant told him he had been attacked while simultaneously asking 14 the jury to disbelieve the same witness’ s statement that the person in the photograph 15 was in fact Defendant would have been injurious to both defenses. Because we can 16 perceive “a plausible, rational strategy or tactic to explain counsel’s conduct[,]” State 17 v. Herrera , 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22, we hold that 186 Defendant’s ineffective assistance of counselclaim is not viable and deny his motion 1 to amend. We further affi rm Defendant’s convictions. 2 {8} Accordingly, for the reasons stated above and in our notice of proposed 3 summary disposition, we affirm. 4 {9} IT IS SO ORDERED. 5

6 J. MILES HANISEE, Judge 7

WE CONCUR: 8

9 M. MONICA ZAMORA, Judge 10

11 JULIE J. VARGAS, Judge 12