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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 Plaintiff-Appellee, 3

v. No. 35,132 4 LEON CORDOVA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Judith K. Nakamura, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Cindy Leos 12 Albuquerque, NM 13 for Appellant 14 MEMORANDUM OPINION 15 SUTIN, Judge. 16 {1} Defendant appeals his convictions for onecount of criminal sexual penetration 17 in the first degree and four counts of c ontributing to the delinquency of a minor. We 182 issued a notice of proposed summary disposition, proposing to affirm Defendant’s 1 convictions. Defendant filed a memorandum opposing the proposed summary 2 affirmance, and we have given careful cons ideration to the arguments made in that 3 memorandum. However, we continue to believe affirmance is warranted. We therefore 4 affirm for the reasons stated in this Op inion and in the notice of proposed summary 5 disposition. 6 {2} In our notice we grouped certain lettered issues together for purposes of 7 discussion. Defendant’s memorandum in opposition, however, does not address the 8 issues in that manner; instead, the me morandum discusses a number of issues 9 individually. For ease of reference in this Op inion, we address the issues in the same 10 order as the memorandum in opposition but wealso incorporate the discussion of each 11 issue that was set out in the notice of proposed summary disposition. 12 {3} Almost all of the issues raised in th e docketing statement and discussed in our 13 notice are claims of ineffective assistance by trial counsel. As we stated in the notice, 14 in order to establish a prima facie case of ineffective assistance, a defendant must 15 show that counsel’s performance fell below an objective standard of reasonableness 16 and that the defendant suffered prejudice as a result because there is a reasonable 17 probability that, except for counsel’s errors , the result of the proceeding would have 183 been different. Lytle v. Jordan , 2001-NMSC-016, ¶¶ 26-27, 130 N.M. 198, 22 P.3d 1 666. 2 {4} Defendant first complains that his trial counsel was ineffective for failing to file 3 a motion under Rule 11-412 NMRA, which, according to Defendant, would have 4 allowed him to inquire into his co-defendant’s criminal conduct toward one of the 5 primary witnesses (Witness) in this case. [MIO 2] Put simply, the co-defendant 6 pleaded guilty to sexually assaulting Witne ss during the same incident that led to 7 Defendant’s convictions, and according to Defendant received a favorable plea. 8 Defendant states, without citation to authority and with no discussion of the question, 9 that if trial counsel had filed a Rule 11- 412 motion, “it would have been permissible 10 for the defense to delve into” the details of the crime with which the co-defendant had 11 been charged. [MIO 2] Howe ver, we see no reason why th e district court would have 12 allowed such an inquiry into the details of a collateral matter such as the separate 13 crime committed by the co-defendant. See, e.g. , State v. Schackow , 2006-NMCA-123, 14 ¶ 31, 140 N.M. 506, 143 P.3d 745 (stating th at even relevant evidence may be 15 “properly excluded where its probative value is substantially outweighed by the 16 danger of . . . confusion of the issues . . . or by considerations of undue delay [or] 17 waste of time” (internal quotation marks and c itation omitted)). While the fact that the 18 co-defendant entered into a plea, presumably in exchange for his testimony in this 194 case, is certainly admissible as relevant to the co-defendant’s possible bias, it is not 1 clear how the details of the offense l eading to the plea would also have been 2 admissible. This is true either with or without the filing of a Rule 11-412 motion. In 3 the absence of any authority or development of the argument, we will not conclude 4 that trial counsel’s failure to file sucha motion was an instance of ineffective 5 representation. See State v. Murillo , 2015-NMCA-046, ¶ 17, 347 P.3d 284 (noting that 6 this Court will not guess at what a party’ s arguments might be or review unclear 7 arguments or develop an argument for a party); State v. Ponce , 2004-NMCA-137, 8 ¶ 36, 136 N.M. 614, 103 P.3d 54 (declining to address an assertion where the 9 defendant provided no authority in support of that assertion). 10 {5} Defendant next contends that if trial counsel had filed a Rule 11-412 motion, 11 he would have been able to cross-examin e Victim about prior allegations of sexual 12 abuse that Victim has allegedly made when she “found herself in trouble.” [MIO 3] 13 None of the specifics of these prior allegations are of record in this case so it is 14 impossible for us to determine whether the failure to ensure that they were inquired 15 into at trial constituted ineffective assistance. See, e.g. , State v. Grogan , 2007-NMSC16 039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (“Habeas corpus proceedings are the preferred 17 avenue for adjudicating ineffective assist ance of counsel claims, because the record 18 before the trial court may not adequately document the sort of evidence essential to 195 a determination of trial couns el’s effectiveness.” (alterati on, internal quotation marks, 1 and citation omitted)). Furthermore, De fendant acknowledges that trial counsel 2 specifically declined to elicit testimony c oncerning these purported prior allegations. 3 [MIO 2] This indicates trial counsel had a tactical reason for not doing so, which must 4 be inquired into in habeas corpus proceedi ngs rather than for the first time on appeal. 5 See State v. Ortega , 2014-NMSC-017, ¶ 56, 327 P.3d 1076 (pointing out that appellate 6 courts will not second-guess trial strategy or tactics of defense counsel). 7 {6} Defendant’s final Rule 11- 412 contention is an assertion that both Victim and 8 Witness have made prior unfounded accusations of sexual abuse against various males 9 and that filing a Rule 11-412 motion would have allowed inquiry into these false 10 accusations. [MIO 3-4] None of this information appears to be of record in this case, 11 and we therefore cannot consider it in this appeal. See State v. Sanchez , 2015-NMCA12 084, ¶ 10, 355 P.3d 795. The information th erefore does not establish a prima facie 13 showing of ineffective assistance. See State v. Hunter , 2006-NMSC-043, ¶ 30, 140 14 N.M. 406, 143 P.3d 168 (recognizing that this Court “has been reluctant to rule on the 15 effectiveness of counsel without a fully developed record”). 16 {7} Defendant next argues that trial couns el was ineffective for failing to obtain 17 records concerning prior criminal behavior by both Victim and Witness, as well as 18 their expulsions from school for behavioral issues. [MIO 4] As Defendant states, 196 “[n]one of this information came before th e [c]ourt as defense counsel did not obtain 1 and offer these records to impeach these witnesses.” [Id. ] Since the information was 2 not before the district court and is therefor e not of record, it cannot be the basis of a 3 claim of ineffective assistance of counsel on direct appeal. Id. 4 {8} Defendant argues that trial counsel s hould have filed a mo tion for independent 5 psychological evaluations of both Victim and Witness. [MIO 4-5] Without indicating 6 where in the record this information mightappear, Defendant states that both Victim 7 and Witness had chaotic home lives, that Witness was in a residential program for 8 troubled teenagers, that Victim was bei ng raised by her grandmother due to her 9 mother’s issues with drugs and incarcerati on, that Witness was seeing a therapist for 10 behavioral and emotional problems includi ng impulsivity, that CYFD documentation 11 indicated someone had called Victim a pathological liar, and that there was evidence 12 of substance abuse by both Victim and Witness. [Id.] Defendant contends that 13 psychological evaluations “would have demons trated mental health issues” and shed 14 light on factors relevant to Victim’s and Witness’ credib ility. [MIO 5] We reject this 15 argument for two reasons. First, most if not all of the information upon which it is 16 based appears to be not of record, and s econd, it is pure speculation to predict what 17 a psychological evaluation of either Vic tim or Witness would or would not have 187 revealed. See id. ; Ortega , 2014-NMSC-017, ¶¶ 57, 59 (rejecting claims of ineffective 1 assistance of counsel because th e arguments were speculative). 2 {9} Defendant renews his contention that trial counsel should have filed a motion 3 requesting a bill of particulars. [MIO 5] Without citation to authority, he argues 4 generally that this failure “prejudiced [h is] ability to formulate a defense, prepare 5 cross-examination, impeach witnesses[,] and call witne sses.” [Id.] Defendant does not 6 respond to the analysis contained in th e notice of proposed summary disposition 7 indicating that the time frame provided by the indictment was narrow, spanning only 8 two days in September 2010. [1 RP 2-3] Defendant also does not explain how this 9 narrow time span so inhibited his preparation for trial that a bill of particulars was 10 necessary in this case. Again, we will not try to develop this argument for Defendant 11 or address it when he has provided no case law indicating that the two-day time span 12 provided by the indictment was somehow deficient. See Murillo , 2015-NMCA-046, 13 ¶ 17; Ponce , 2004-NMCA-137, ¶ 36. 14 {10} Defendant challenges trial counsel’s failure to request a supplemental jury 15 questionnaire, without providing any specifics as to what questions would have been 16 included in such a supplemental questionnaire. [MIO 6] Defendant also does not 17 explain whether any of the jurors who sat on the case had a personal history to which 18 such questions might have been relevant. Thus, Defendant’s argument boils down to 198 an assertion that failure to request a supplemental jury questionnaire automatically 1 constitutes ineffective assistance of counselin a case involving allegations of sexual 2 assault on a child. However, Defendant pr ovides no authority in support of such an 3 assertion and we therefore decline to address it. See Ponce, 2004-NMCA-137, ¶ 36. 4 In addition, the failure to provide any specific factual information as to how 5 Defendant was prejudiced by the lack of a supplemental questionnaire is also reason 6 to reject his claim of ineffective assistance. See Ortega , 2014-NMSC-017, ¶ 58 7 (pointing out that to demonstrate prejudice, a defendant must show that the result of 8 the trial would have been different ab sent counsel’s defective performance). 9 {11} Defendant indicates that according to the State, Victim had been avoiding 10 service (presumably of a subpoena to appear at trial as a witness) because she was 11 afraid of being arrestedon two warrants—one for s hoplifting and one for false 12 reporting of a crime. [MIO 7] Defendant al so points out that when Victim testified, 13 trial counsel did not impeach Victim with th ese two crimes of dishonesty or with her 14 alleged failures to comply with pretrialrelease or probation resulting from these 15 offenses. [Id.] The question of how vigorously to cross-examine analleged victim of 16 a sexual assault is a quintesse ntial judgment call and thus a matter of trial strategy and 17 tactics. Without evidence as to why trial counsel chos e not to pursue the type of 18 impeachment Defendant contends should have occurred, we cannot say there was no 199 reasonable basis for trial counsel’s actions. This issue is theref ore better pursued in 1 an action for habeas corpus relief. See id. ¶¶ 56, 60 (pointing out that appellate courts 2 will not second-guess trial strategy and tactics of defense counsel and that where the 3 record is insufficient to establish whether trial counsel’s actions were reasonable, the 4 claim should be brought under habeas corpus proceedings in which the defendant can 5 develop a record of the reasons for trial counsel’s actions). 6 {12} Defendant complains that even though th e State presented evidence that Victim 7 was diagnosed with a sexuallytransmitted disease two weeks after the incident, trial 8 counsel did not counter with evidence thatneither Defendant norhis wife had ever 9 had the disease. [MIO 8] This evidence, however, was not presented to the district 10 court and is therefore not of record at this time. For this reason, this argument cannot 11 be the basis for a claim of in effective assistance of counsel. Hunter , 2006-NMSC-043, 12 ¶ 30. 13 {13} Defendant maintains that Witness’s credibility “went unchallenged” by trial 14 counsel. [MIO 9] According to Defendant , this was so even though Witness was 15 facing expulsion from school on the day of the incident, started psychological 16 treatment immediately afterward, was arrested for shoplifting the day afterward, 17 continually committed crimes of dishonesty, stole from her teachers, and lied about 18 the shoplifting incident during an interview with a law enforcement officer about the 1910 incident leading to Defendant’s conviction. [Id.] Defendant also states that trial 1 counsel failed to “explore” a belt tape of an interview in which the interviewing 2 officer expressed disbelief of her accusations, warned her about false reporting, and 3 commented on her lack of emotion. [Id.] Finally, Defendant complains that trial 4 counsel objected to a question submitted by a juror that asked why Witness could not 5 identify Defendant in the courtroom if sh e kept “seeing” the sexual act. [Id.] Again, 6 many of the alleged facts now offered by De fendant do not appear to have been made 7 part of the record below. Id. As for the belt tape, Defe ndant provides no argument or 8 authority as to why the contents of the be lt tape would have b een admissible, and we 9 will not try to develop that argument for him or find such authority. See Murillo , 10 2015-NMCA-046, ¶ 17; Ponce , 2004-NMCA-137, ¶ 36. Finally, there is an obvious 11 possible tactical reason for trial counsel’s objection to the juror’s question—trial 12 counsel could have thought, ba sed on the question, that the juror already harbored 13 strong doubts about Witness’s credibility and could have decided it would be better 14 not to give Witness an opportunity to dispel those doubts. On the record before us, 15 therefore, we will not second-guess trial c ounsel’s possible tactics and strategy, and 16 we believe this claim would be better pur sued in a habeas corpus proceeding. See 17 Ortega , 2014-NMSC-017, ¶¶ 56, 60. 1811 {14} Defendant raises a challenge to trial counsel’s handling of co-defendant’s 1 testimony. [MIO 10] However, the challengeis the same one we already addressed 2 earlier—trial counsel’s failure to file a Rule 11-412 motion, which ostensibly would 3 have allowed trial counsel to delve into th e circumstances of the co-defendant’s own 4 crime. For the same reasons as those we have already discussed, we reject this 5 argument as a basis for an ineffective assistance claim. 6 {15} Defendant contends that trial counsel should have presented testimony from 7 Defendant’s former attorney , who could have refuted te stimony provided at trial by 8 the co-defendant’s girlfriend. The testimony that Defendant’s former attorney would 9 allegedly have provided is not of record, and therefore cannot be the basis for a claim 10 of ineffective assistance. See Hunter , 2006-NMSC-043, ¶ 30. 11 {16} Defendant alleges that trial counsel “didnot allow [him] to testify in his own 12 defense.” [MIO 11] First, an attorney does not have the authority to prohibit her client 13 from testifying, so this statement cannot be true as a matter of law. State v. Henry , 14 1984-NMCA-040, ¶ 20, 101 N.M. 277, 681 P.2d 62 (“It is axiomatic that an accused 15 in a criminal trial may elect to testify on his own behalf despite advice to the contrary 16 from defense counsel.”). Second, if trial counsel did attempt to prohibit Defendant 17 from testifying or merely strongly counseled ag ainst it, that information is not part of 18 the record below. Similarly, Defendant’s e xpression of a desire to testify on his own 1912 behalf was not made on the record. For th ese reasons, this argument does not state a 1 claim for ineffective assistance of couns el, at least in this direct appeal. See Hunter , 2 2006-NMSC-043, ¶ 30. 3 {17} Defendant concludes with a summary of all of trial c ounsel’s asserted failures. 4 [MIO 12-13] As we have discussed, however, all of thes e alleged failures are either 5 based on facts that are not of record in this case or are matters of tactics and strategy 6 that need to be explored, if at all, in a habeas corpus proceeding. For the reasons stated 7 in this Opinion and in the notice of proposed summary disposition, we affirm 8 Defendant’s convictions. 9 {18} IT IS SO ORDERED. 10

__________________________________ 11 JONATHAN B. SUTIN, Judge 12

WE CONCUR: 13

_______________________________ 14 LINDA M. VANZI, Judge 15

_______________________________ 16 M. MONICA ZAMORA, Judge 17