This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from 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 3 Plaintiff-Appellee, 4

v. NO. 34,222 5 DANIEL ALDERETE, 6 Defendant-Appellant. 7

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Judith Nakamura, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jorge A. Alvarado, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 WECHSLER, Judge. 182 {1} Defendant appeals from a jury verdict finding him guilty of trafficking a 1 controlled substance (heroin) by possession with intent to distribute and possession 2 of drug paraphernalia. [DS 3; RP 132, 134] This Court issued a calendar notice 3 proposing to affirm. Defendant has f iled a memorandum opposing this Court’s 4 proposed disposition, and has moved to amend his docketing statement. Having given 5 due consideration to Defendant’s arguments in opposition, we affirm. Moreover, 6 Defendant’s motion to amend his docketing statement is denied. 7 Sufficiency of Evidence 8 {2} Defendant maintains that there is insufficient evidence to support his trafficking 9 conviction. [MIO 3] Specifically, Defendant asserts that there was insufficient 10 evidence of his intent to transfer heroin toanother person. [MIO 9] In this Court’s 11 notice of proposed summary disposition, wepointed out that the State presented 12 evidence that pursuant to a search warrant, police searched Defendant’s home and 13 found 21.5 grams of heroin on the living r oom coffee table along with a syringe. [CN 14 4; DS 3] The heroin, which was packaged inbaggies, a syringe with heroin inside, and 15 two digital scales were introduced into ev idence. [CN 4; DS 4] Two police officers 16 also testified that the amount of heroin wa s consistent with anamount for sale. [CN 17 5; DS 5] 183 {3} Thus, because knowledge and intent can be inferred, State v. Motes , 1994- 1 NMSC-115, ¶ 11, 118 N.M. 727, 885 P.2d 648 (noting that because intent is 2 subjective, it is rarely proved by direct ev idence and is almost always inferred from 3 other facts in the case); State v. Montoya , 1966-NMSC-224, ¶ 10, 77 N.M. 129, 419 4 P.2d 970 (recognizing that because knowledge “is personal in its nature and may not 5 be susceptible of proof by direct evid ence[,]” it may “be inferred from occurrences 6 and circumstances”), there was sufficient evidence for the jury to conclude that 7 Defendant possessed the requis ite intent to transfer. See State v. Bejar , 8 1984-NMCA-031, ¶ 11, 101 N.M. 190, 679 P. 2d 1288 (“In New Mexico, possession 9 of a large quantity of contraband has been found to be enough to allow the inference 10 that defendant intended to distribute the controlled substance.”). 11 Ineffective Assistance of Counsel (Failure to Present a Defense) 12 {4} Defendant continues to argue that his trial counsel was in effective by failing to 13 call any witnesses in support of his defense that he did not have the requisite intent to 14 transfer heroin. [MIO 8; DS 6] 15 {5} Defendant has the burden of establishi ng a prima facie case of ineffective 16 assistance of counsel. State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 17 61. Defendant may only establish a prim a facie case by showing that his counsel’s 18 performance fell below the performance of a reasonably co mpetent attorney, and that 194 his counsel’s deficient performance prejudiced him. Patterson v. LeMaster , 1 2001-NMSC-013, ¶ 17, 130 N.M. 179, 21 P.3d 1032. “We indulge a strong 2 presumption that counsel’s conduct falls within the wide range of reasonable 3 professional assistance; that is, the defe ndant must overcome the presumption that, 4 under the circumstances, the challenged action might be considered sound trial 5 strategy.” State v. Dylan J. , 2009-NMCA-027, ¶ 37, 145 N.M. 719, 204 P.3d 44 6 (internal quotation marks and citation omitted). 7 {6} As we discussed in our notice of propos ed disposition, Defe ndant has made no 8 showing that even if he called his ow n witnesses to offer testimony regarding 9 Defendant’s addiction to hero in and the amount of heroin that Defendant would likely 10 need for personal use, that such testimony would have affected the outcome at trial. 11 See Duncan v. Kerby , 1993-NMSC-011, ¶¶ 10, 12, 115 N.M. 344, 851 P.2d 466 12 (stating that prejudice must be shown beforea defendant is entitled to relief based on 13 ineffective assistance of counsel); see generally In re Ernesto M. , 1996-NMCA-039, 14 ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of 15 prejudice.”). 16 {7} Moreover, to the extent that these ar guments may be based on information not 17 contained in the record currently before th is Court, we note that where information 18 that is not of record may give rise to a claim of ineffective assistance of counsel, such 195 arguments are best raised inhabeas corpus proceedings. See State v. Roybal , 1 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (“If facts necessary to a full 2 determination are not part of the record , an ineffective assi stance claim is more 3 properly brought through a habeas corpus petition[.]”). 4 Speedy Trial and Ineffective Assistance of Counsel 5 {8} Defendant continues to assert that his right to a speedy trial was violated. [MIO 6 11] Defendant has also moved this Court to amend his docketing statement pursuant 7 to Rule 12-208(E) NMRA to add the issue th at his trial counsel was ineffective for 8 failing to file a substantive motion to di smiss for a speedy trial violation after 9 signaling to the district court that he would do so. [MIO 1] 10 {9} We first address Defendant ’s continued contention that his constitutional right 11 to a speedy trial was violated because trial did not commence until twenty-six months 12 after he was indicted on the charges in the present case. [MIO 12] We explained in our 13 notice of proposed disposition that “in order to preserve a spee dy trial argument, [a 14 d]efendant must properly raise it in the lower court and invoke a ruling.” State v. 15 Lopez , 2008-NMCA-002, ¶ 25, 143 N.M. 274, 175 P.3d 942. The filing of a motion 16 demanding a speedy trial is insufficient to preserve the issue for appellate review. 17 State v. Olivas , 2011-NMCA-030, ¶ 22, 149 N.M. 498, 252 P.3d 722. Defendant’s 18 memorandum in opposition does not state that a ruling was invoked below, and 196 acknowledges that this Court is precluded from reviewing this issue due to trial 1 counsel’s failure to invoke a ruling. [MIO 17] Accordingly, we conclude that the issue 2 was not preserved for appellate review. 3 {10} We turn next to Defendant’s motion toamend the docketing statement for the 4 reason that his counsel was ineffective for failing to file a substantive motion to 5 dismiss for speedy trial violation. [MIO11-17] However, De fendant acknowledges 6 that his contention relies upon facts that were not adequatelydeveloped below by 7 stating that “a substantive motion todismiss for speedy trial violation might have been 8 successful.” [MIO 17 (empha sis added)] “Without an adequate record, an appellate 9 court cannot determine that trial counsel provided constitutionally ineffective 10 assistance.” State v. Crocco , 2014-NMSC-016, ¶ 15, 327 P.3d 1068. The record 11 before this Court contains no indication that trial counsel’s failure to file a speedy trial 12 motion was not a rational trial tactic and was prejudicial to the outcome of the 13 proceedings. Cf. id. ¶ 24. Where evidence supporti ng an ineffective assistance of 14 counsel claim is not contained in the reco rd, “an ineffective assistance claim is more 15 properly brought through a habeas corpus petition[.]” Roybal , 2002-NMSC-027, ¶ 19. 16 {11} Given that Defendant has failed to demonstrate a viable appellate issue, his 17 motion to amend the docketing statement is denied. See State v. Sommer , 1994- 18 NMCA-070, ¶ 11, 118 N.M. 58, 878 P.2d 1007 (denying a motion to amend the 197 docketing statement based upon a determinati on that the argument sought to be raised 1 was not viable). With respect to the issues raised in Defendant’s original docketing 2 statement and argued in his memorandum in opposition, we affirm for the reasons 3 stated above and in this Court’s notice of proposed disposition. 4 {12} IT IS SO ORDERED. 5

__________ ______________________ 6 JAMES J. WECHSLER, Judge 7

WE CONCUR: 8

________________________________ 9 MICHAEL E. VIGIL, Chief Judge 10

________________________________ 11 RODERICK T. KENNEDY, Judge 12