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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-34632 4 GABRIEL MONTOYA, 5 Defendant-Appellant. 6
APPEAL FROM THE DISTRICT CO URT OF BERNALILLO COUNTY 7 Richard J. Knowles, District Judge 8 Hector H. Balderas, Attorney General 9 Marko D. Hananel, Assi stant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chie f Public Defender 13 Mary Barket, Assistan t Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 HANISEE, Judge. 182 {1} Defendant Gabriel Montoya appeals from his convictions following a jury 1 trial for armed robbery, conspiracy to co mmit armed robbery, aggravated burglary, 2 and conspiracy to commit aggravated burglary. Defendant was sentenced to 3 twenty-six years of imprisonment, which includes two years of mandatory firearm 4 enhancements of his sentences for ar med robbery and aggravated burglary. 5 Defendant advances the following argument s on appeal: (1) his right to be free 6 from double jeopardy was violated by both of his conspiracy convictions as well as 7 the firearm enhancements to his senten ces for armed robbery and aggravated 8 burglary; (2) the district court erre d by not allowing a second substitution of 9 defense counsel shortly before trial; (3) the district court erred by not granting 10 Defendant’s request for a cont inuance of the jury trial; (4 ) the district court erred 11 by excluding the testimony of Defenda nt’s father, Steven Montoya; (5) 12 Defendant’s right to effectiv e assistance of counsel was violated; (6) the district 13 court erred by denying Defendant’s reque sted jury instruction concerning the 14 unreliability of accomplice testimony; (7 ) the accomplice testimony offered by the 15 State against Defendant was insufficient to sustain his convictions; (8) the district 16 court erred by denying Defendant’s request for a mistrial because of an alleged 17 mischaracterization by the State in its rebu ttal closing argument; and (9) the district 18 court’s cumulative errors require reversal because Defendant was deprived of his 19 right to a fair trial. 203 {2} We agree that the State did not pres ent evidence of separate conspiracies. 1 Accordingly, we remand this case to the di strict court with instructions that it 2 vacate one of Defendant’s conspiracy convictions and re sentence Defendant 3 accordingly. For the reasons set forth herein, we are unpers uaded by Defendant’s 4 remaining arguments and otherwise affirm. 5 BACKGROUND 6
{3} Defendant, Leroy Lucero, and Harry W illiams conspired to burglarize Lisa 7 and Tristan Hawkins’ home, with whic h Defendant was fam iliar and believed 8 contained firearms, as well as a safe, ca sh, and tools. Dressed as a pizza delivery 9 person, Mr. Williams knocked on the Hawk ins’ front door. When Ms. Hawkins 10 answered the door and told Mr. Williams that she had not ordered pizza, Mr. 11 Williams asked her to help him verify th e address he claimed to be his intended 12 destination. As Ms. Hawkins stepped ou tside to do so, Mr. Williams displayed a 13 firearm and ordered her to go back in side. Defendant, Mr. Williams and Mr. 14 Lucero then entered the house, ordered Ms. Hawkins to the floor, tied her up and 15 covered her head with a jack et so she could not see. 16

{4} When she denied having the keys to th e safe and that there was cash in her 17 house, the coconspirators pistol-whipped Ms. Hawkins. They then located and 18 stole thirty firearms, Ms. Hawkins’ phone, cash, and debit cards, along with 194 various tools and videos. Both Mr. Lucer o and Mr. Williams we re presented by the 1 State as witnesses during Defendant’s trial. 2

{5} Because this is a non-precedential opini on drafted to inform the parties of 3 our reasoning, we omit further factual di scussion at this time and discuss only 4 those additional facts that are necessary to our analysis. 5 DISCUSSION 6 I. Double Jeopardy 7
{6} We review Defendant’s double jeopar dy arguments de novo as a matter of 8 law. State v. Gallegos , 2011-NMSC-027, ¶ 51, 149 N.M. 704, 254 P.3d 655. When 9 “factual issues are intertwined with the double jeopardy analysis, we review the 10 trial court’s fact determinations under a de ferential substantial evidence standard of 11 review.” Id. (internal quotation marks and c itation omitted). “The defense of 12 double jeopardy may not be wa ived and may be raised by the accused at any stage 13 of a criminal prosecution, either before or after judgment.” NMSA 1978, § 30-1-10 14 (1963). 15 A. One of Defendant’s Conspiracy Co nvictions Must Be Vacated as a 16 Violation of Defendant’s Right to Be Free From Double Jeopardy 17
{7} The jury convicted Defendant of c onspiracy to commit armed robbery and 18 conspiracy to commit aggravated burgl ary, among other crimes. As Defendant 19 argues and the State concedes, under Gallegos , the State did notpresent evidence 20 of separate conspiratorial ag reements as to each offense. See 2011-NMSC-027, ¶¶ 215 42, 55, 56 (holding that there exists a “r ebuttable presumption that multiple crimes 1 are the object of only one, overarching cons piratorial agreement” and that the 2 “presumption of singularity may [only] be overcome by [evide nce] demonstrating 3 the existence of more than one conspiracy”). Given th at the evidence presented by 4 the State at trial indicated that both cons piracies were jointly planned, and the 5 ensuing acts of armed robbery and aggravat ed burglary were jointly carried out by 6 those conspirators, incl uding Defendant, we agree. 7
{8} Gallegos further instructs that punishment should be imposed on the “single 8 remaining conspiracy at the level of the highest crime conspired to be 9 committed[.]” Id. ¶ 64 (internal quotation marks a nd citation omitted). Aggravated 10 burglary and armed robbery are both sec ond degree felonies, so either one of 11 Defendant’s conspiracy convictions may be vacated. We therefore remand this 12 case to the district court to vacate one of Defendant’s conspiracy convictions and 13 to resentence Defendant consiste nt with this determination. 14 B. The Firearm Sentencing Enhancemen ts Do Not Violate Defendant’s Right to Remain Free of Double Jeopardy

{9} Defendant argues that se parate, one-year enhancemen ts of his convictions 15 for armed robbery and aggravated burglar y, imposed pursuant to NMSA 1978, 16 Section 31-18-16(A) (1993), the firear m enhancement statute, violate double 17 jeopardy because the same c onduct, Defendant’s use of a firearm, violates the 18 statutes criminalizing armed robbery and aggravated burglary and serves as the 196 factual predicate for sentencing enhancemen t. However, as the State points out in 1 its answer brief, this same challenge to the firearm enhancement statute has been 2 resolved recently by our Supreme Court in State v. Baroz, 2017-NMSC-030, ¶ 20, 3 23, 404 P.3d 769, which evaluated the appli cability of double jeopardy to separate 4 firearm enhancements for two convictions of aggravated assa ult with a deadly 5 weapon stemming from the defendant’s unitary act of firing a gun. Baroz held that 6 “the Legislature intended to authorize gr eater punishment for noncapital felonies 7 committed with a firearm[,]” and as such individual firearm enhancements do “not 8 run afoul of double jeopardy.” Id . ¶ 27. We therefore affi rm the district court’s 9 imposition of firearm enhancements to De fendant’s sentences for armed robbery 10 and aggravated burglary. 11 II. The District Court Did Not Abuse It s Discretion by Denying a Second 12 Substitution of Defense Counsel 13
{10} Defendant contends that the district c ourt’s refusal to allow substitution of 14 defense counsel shortly befo re trial deprived Defendan t of his constitutional right 15 to conflict-free counsel in light of Defenda nt’s attorney’s (defense counsel) poor 16 health in the months prior to trial. The State counters that both defense counsel and 17 the attorney willing to substitute for defens e counsel agreed that a substitution was 18 not necessary, and that the district court did not abuse its discretion in denying the 19 substitution. The State also argues that de fense counsel’s health does not bear the 20 capacity to constitute a “conflict” such that substitution was require d. We affirm on 217 the basis that the district court did not abuse its discretion in denying the 1 substitution requested by Defendant. 2 A. Standard of Review 3
{11} We review the district court’s decisi on as to whether to appoint substitute 4 counsel for abuse of discretion. State v. Lucero , 1986-NMCA-085, ¶ 21, 104 N.M. 5 587, 725 P.2d 266. Although an indigent de fendant has the right to appointed 6 counsel, that right does not include the right to choose his attorney. Id. “In order to 7 dismiss the appointed counsel, a defend ant must come forward and make a 8 showing that failure to appoint subst itute counsel will re sult in ineffective 9 representation or prejudice to the defense.” Id. 10 B. Analysis 11
{12} In March 2014, approximately seven months before tr ial, the district court 12 permitted the withdrawal of two private attorneys based upon an unspecified actual 13 conflict of interest. The district court th en directed that th e Law Offices of the 14 Public Defender represent Defendant, a nd the following month defense counsel 15 entered his first and only appearance fo r Defendant. In Oct ober 2014, and despite 16 defense counsel not having sought to with draw, a separate public defender contract 17 attorney, Christopher Knight, ente red his appearance for Defendant. 18

{13} During a pretrial conference attende d by Defendant, defense counsel, and 19 Mr. Knight, defense counsel informed the district court that the public defender’s 208 office had notified him that he would no longer represent Defendant, possibly 1 because “[Defendant’s] father had [spoken with the public defender’s office] and 2 made a convincing case for some proble m that he had.” Regarding his illness, 3 defense counsel stated that he had been diagnosed with mening itis in July 2014, 4 which had affected him “significantly” fro m July through September of that year. 5 Defense counsel stated, “I don’t like [to] try to get off cases . . . [u]nless there is a 6 real conflict that I can’t resolve with a client.” Defense counsel did not move to 7 withdraw. At no time did defense counsel claim an inability to prepare for or 8 represent Defendant in the November trial. Also during the conf erence, Mr. Knight 9 acknowledged that he was unprepared to try the case in less than a month, that 10 defense counsel’s “file [was] extremely well prepared” and “ voluminous[,]” and 11 that Mr. Knight saw no “major conflic t or any other reason to go ahead and 12 suddenly do a reassignment of an attorney.” 13

{14} The district court then asked Defendant if he had “any particular complaints” 14 with defense counsel’s representation. Defe ndant stated three concerns: (1) defense 15 counsel had not yet filed another motion to review conditions of release; (2) 16 Defendant heard from defense counsel’s othe r clients that they were not satisfied 17 and defense counsel’s contact with them had been “very minimal”; and (3) on one 18 occasion defense counsel went to the Me tropolitan Detention Center to meet with 19 Defendant but had forgotten the file for one of Defendant’s ot her cases. Defendant 209 insisted that he was willing to remain in custody for another three or four months if 1 necessary so Mr. Knight would have time to prepare the case for trial. 2

{15} Having noted earlier in the confer ence that that under Rule 5-107(B) 3 NMRA, district courts, and not defendants or the public defender’s office, decide 4 whether an attorney on a given case ma y withdraw, the district court denied 5 Defendant’s request for a s econd substitute counsel and ordered defense counsel to 6 continue to represent Defendant because there was no “legal basis for having 7 [defense counsel] withdraw.” The district court reasoned that defense counsel did 8 not move to withdraw, and that while usua lly substitution of counsel is “liberally 9 granted[,]” by then the case had been pendi ng over two years, within which there 10 had been multiple con tinued trial settings. 11

{16} We hold that the district court did not abuse its discretion in refusing to 12 permit substitution of defense counsel. De fendant’s stated reasons for why he 13 wanted a new attorney in no way conve yed that defense counsel’s continued 14 representation would result in ineffective assistance or prejudice to Defendant, or 15 touched upon the subject of any actual conflict regarding defense counsel’s 16 ongoing representation of Defendant. See State v. Bell , 1977-NMSC-013, ¶ 68, 90 17 N.M. 134, 560 P.2d 925 (holding no tenable showing of abuse of discretion when 18 no claim of inadequate representation or prejudice to defe nse was made). The 19 ongoing circumstance of Defendant’s pret rial incarceration, along with defense 2010 counsel’s representation of ot her defendants and his isolat ed lapse in forgetting to 1 bring a file on one occasion when vis iting Defendant in custody, are largely 2 irrelevant to the inquiry of whether the circumstances dictated a ruling, based on 3 conflict, ineffectiveness of representati on, or prejudice, outside the range of 4 discretion afforded the district court. Combined with the district court’s 5 consideration of the long pendency of this case and the multip le previous trial 6 settings, we cannot conclude the district court abused its discretion in denying a 7 second substitution of defense counsel. 8

{17} Given Defendant’s failure to make specific reco rd citations regarding 9 precisely how defense counsel’s illness a ffected his representation of Defendant, 10 see State v. Lopez , 2018-NMCA-002, ¶ 26, 410 P.3d 226 (stating that in the 11 absence of citation to specific facts in th e record, we will not search for them to 12 support generalized arguments), we only br iefly address Defendant’s argument that 13 defense counsel’s health issues undermined his loyalty to Defendant, resulting in 14 an actual conflict of interest for whic h prejudice to Defendant is presumed, and 15 that the conflict prevented defense counsel from pursuing a viable defense strategy. 16 Defendant relies on State v. Martinez , 2001-NMCA-059, 130 N.M. 744, 31 P.3d 17 1018, and State v. Santillanes , 1990-NMCA-035, 109 N.M. 781, 790 P.2d 1062, 18 both of which are distinguishable from this case. The conflict of interest in 19 Martinez was that the defense attorney had been implicated in the murder for 2011 which he was defending hi s client, 2001-NMCA-059, ¶ 27, while the conflict of 1 interest in Santillanes was that the defense attorney had jointly represented two 2 brothers on the same case, and “[b]y at tempting to establish a defense for co3 defendant, trial counsel was forced to ab andon strategy that coul d have been used 4 to exonerate defendant.” 1990-NMCA-035, ¶ 10. Neither of these extreme 5 circumstances exists in this case, nor has Defendant provide d a basis from which 6 the presumption of prejudice can arise base d upon an actual conflict. We affirm the 7 district court’s denial of Defendant’s motion to substitute. 8 III. Defendant Did Not Move to Continue the Jury Trial and Therefore Did 9 Not Preserve His Challenge That the District Court Committed 10 Reversible Error by Not Continuing Defendant’s Trial 11
{18} Defendant argues that the district c ourt erred in not continuing his trial 12 because during a pretrial hearing defens e counsel “appeared wholly unprepared 13 and unaware of the substance of witness testimony he potentially intended to rely 14 upon.” He further contends that the districtcourt erred by not clarifying whether 15 Defendant sought a continua nce. The State counters that Defendant did not seek a 16 continuance and that this clai m of error was not preserved. 17

{19} Our review of the record confirms that Defendant did not request a 18 continuance prior to trial. Although defe nse counsel, during a pretrial hearing, 19 twice referenced the possibility of a continuance based on unrelated issues 20 regarding trial witnesses, on neither occasion did he act ually request one. First, 2112 regarding the fact that the State had not interviewed several defense witnesses, 1 defense counsel stated, “I can ask for a c ontinuance in the case to complete that 2 part of the investigation, is one possibl e remedy to the situation. But the other 3 possible way we could approach it would be to attempt to at least get some of the 4 most salient of . . . these witnesses availa ble to the State prior to the beginning of 5 the defendant’s case and to not mention them in the opening.” Second, when the 6 State notified defense counsel that it woul d not call the case agent to testify, 7 defense counsel said, “[I]t appears that if we’re not going to continue the trial on 8 the basis of this witness’s unavailability . . . then our choice, really, is to move to 9 suppress him[.]” The district court then pointed out, “ Nobody has asked me to 10 continue [the trial]; I’m just mentioning th at. So you’re going to move to 11 suppress?” (Emphasis added. ) Defense counsel responded, “Yes, [y]our Honor.” 12

{20} Thus, since Defendant did not affirma tively seek a continuance of the trial 13 setting, the issue is unpreserved and we decline to address it further. See Rule 12- 14 321(A) NMRA (“To preserve an issue for review, it must appear that a ruling or 15 decision by the trial court was fairly invok ed.”). Nor is there any duty on the part 16 of the district court to sua sponte contin ue the trial, and we reject Defendant’s 17 contention that the district court should have done so or inquired in greater detail 18 as to Defendant’s position with re gard to a trial continuance. See State v. Montoya , 19 1993-NMCA-097, ¶ 19, 116 N.M. 297, 861 P. 2d 978 (declining to review the 2013 district court’s denial of a motion for co ntinuance because the trial record did not 1 show that such a motion was made to the di strict court and stating “[t]here is no 2 duty upon the trial court to order a conti nuance when none has been requested.”). 3 IV. The District Court Did Not Abuse Its Discretion by Excluding Steven 4 Montoya’s Testimony 5
{21} Defendant contends that the districtcourt abused its discretion by excluding 6 testimony from Defendant’s father, Stev en Montoya, who Defendant did not 7 timely disclose as a defense witness a nd whose proposed testimony the district 8 court determined to be inadmissible. Defendant argues that Mr. Montoya should 9 have been permitted to testify regardin g his knowledge of Mr. Hawkins, whose 10 home Defendant and his cocons pirators burglarized and who testified that he saw 11 Defendant and Mr. Lucero together at a gas station the morning of the robbery. 12 The State responds that Defendant twice attempted to provide proffers for Mr. 13 Montoya’s testimony during trial, and that neither proffer included anything 14 admissible or related to Mr. Hawkins’ mo tive to lie. Moreover, defense counsel 15 could have, but chose not to, cross-exam ine Mr. Hawkins abouthis motive to lie 16 rather than hope to call Mr. Montoya to te stify later, so any error was harmless. 17 A. Standard of Review 18
{22} Admissibility of the testimony at issue is governed by Rules of Evidence, 19 11-403, 11-404, and 11-608 NMRA, a distri ct court’s application of which is 20 reviewed for an abuse of discretion. See State v. Torres , 2018-NMSC-013, ¶ 58, 2114 413 P.3d 467 (stating admissibility of evid ence under Rule 11-608 “is left to the 1 sound discretion of the trial court”) (int ernal quotation marks and citation omitted); 2 State v. Sena , 2008-NMSC-053, ¶ 12, 144 N.M. 821, 192 P.3d 1198 (stating same 3 regarding Rule 11-404(B); State v. Sarracino , 1998-NMSC-022, ¶ 20, 125 N.M. 4 511, 964 P.2d 72 (“We review the ad mission of evidence under an abuse of 5 discretion standard and will no t reverse in the absence of a clear abuse.”). A court 6 abuses its discretion when it makes an evid entiary ruling that “i s clearly against the 7 logic and effect of the facts and circumst ances of the case” and “clearly untenable 8 or not justified by reason.” State v. Samora , 2016-NMSC-031, ¶ 37, 387 P.3d 230 9 (internal quotation marks and citation omitted). 10

{23} “All relevant evidence is generally ad missible, unless otherwise provided by 11 law[.]” State v. Balderama , 2004-NMSC-008, ¶ 23, 135 N.M. 329, 88 P.3d 845. 12 “Evidence that reflects on a witn ess[’s] credibility is relevant.” State v. Johnson , 13 2010-NMSC-016, ¶ 41, 148 N.M. 50, 229 P.3d 523. “Any doubt whether the 14 evidence is relevant should be reso lved in favor of admissibility.” Balderama , 15 2004-NMSC-008, ¶ 23. Rule 11-403 instruct s that evidence that is otherwise 16 admissible may be excluded if its probativ e value is substantially outweighed by 17 danger of unfair prejudice, confusion of issues, waste of time, delay, or 18 presentation of cumulative evidence. Rule 11-404(A)(1) prescribes that 19 “[e]vidence of a person’s character or charact er trait is not admissible to prove that 2015 on a particular occasion the person acted in accordance with the ch aracter or trait.” 1 Rule 11-404(A)(3) states that “[e]vidence of a witness’s character may be admitted 2 under Rules 11-607, 11-608, and 11-609 NMRA.” Rule 11-607 instructs that 3 “[a]ny party, including the party that calle d the witness, may attack the witness’s 4 credibility.” Lastly, pursuant to Rule 11-608(B)(1), cross-examination about 5 specific instances of conduct probative of th e witness’s character for truthfulness is 6 generally admissible, although extrinsic ev idence is not admissible to prove such 7 conduct. 8 B. Analysis 9
{24} Pointing to very few specifics during trial or in his briefing on appeal, 10 Defendant argued at trial that Mr. Mont oya would have testified that on one 11 occasion he observed Mr. Hawkins act “phy sically aggressive toward” Defendant 12 at Defendant’s grandfather’s home, which defense counsel argue d was relevant to 13 Mr. Hawkins’ “motivation to have [Defenda nt] charged and convicted in this case” 14 and amounted to a “potential grudge agains t [Defendant].” In his brief in chief, 15 Defendant argues that Mr. Montoya wished to testif y regarding Mr. Hawkins’ 16 “vindictiveness toward [Def endant,]” which related to his bias and motivation to 17 lie, and in his reply brief added Mr. M ontoya would have testified that Mr. 18 Hawkins believed Defendant to be ha ving an affair with Ms. Hawkins. 1916 {25} Based upon Rules 11-404(B), 11-405, and 11-608, the State sought 1 exclusion of Mr. Montoya’s testimony, wh ich the State charact erized as evidence 2 of a “grudge” that served as the basis fo r Mr. Hawkins’ effort to have Defendant 3 arrested. The State argued that based on Defendant’s proffe r, Mr. Montoya’s 4 testimony was irrelevant because it did not make “any matter at issue more or 5 less . . . probative or probable.” The St ate also argued that Mr. Montoya was 6 disclosed late, and that during the pretrial interview, Mr. Montoya stated he did not 7 have anything relevant to say and denied that there was anything specific about 8 which he would testify. 9
{26} The district court ultimately excl uded Mr. Montoya’s testimony, not on 10 grounds of untimely disclosu re as Defendant suggests, but because Mr. Montoya’s 11 testimony was irrelevant under Rule 11- 401 as extrinsic evidence concerning a 12 collateral matter, inadmissible under Ru le 11-403 because it lacked probative 13 value, or if it had any probative valu e, it was minimal and “substantially 14 outweighed by confusion of the issues[,]” and thus inadmissible under Rule 11- 15 404(A). 1 16

1 The district court also observed thatit was defense c ounsel, and not the State, that elicited the only “direct te stimony from Mr. Hawkins that [Defendant] did anything” when Mr. Hawkins testifie d on cross-examination that he “thought [of Defendant] immediately” as the pers on who could have committed the robbery of his home.17 {27} We conclude that the district cour t acted within its discretion when it 1 disallowed testimony from Mr. Montoya. Testimony that Mr. Hawkins acted 2 aggressively toward Defendant on a single occasion was minimally relevant 3 because the testimony was not probative of Mr. Hawkins’ grudge, his motive to lie, 4 his credibility, or his character for truthfulness. Furthe r, we agree with the district 5 court that the de minimis probative valu e of this testimony was substantially 6 outweighed by the confusion of the issu es it would cause and was therefore 7 inadmissible under Rule 11-403. 8

{28} We likewise conclude that Mr. M ontoya’s testimony was inadmissible under 9 Rule 11-608(B). Although the district court did not refer to Rule 11-608(B) in its 10 ruling, we may affirm the district cour t if it is right for any reason, and we 11 therefore briefly evaluate the exclusion under Rule 11-608(B). See State v. 12 Patterson , 2017-NMCA-045, ¶ 15, 395 P.3d 543 (analyzing admissibility of 13 evidence under Rule 11-403 as alternative basis for its holding under right for any 14 reason doctrine); see also Gallegos , 2007-NMSC-007, ¶ 26 (analyzing 15 admissibility of evidence under theory not argued below pursuant to right for any 16 reason doctrine as long as doing so is fair to appellant). Mr. Montoya’s proposed 17 testimony about Mr. Hawkins acting aggre ssively toward Defendant on a prior 18 occasion constitutes extrinsic evidence of a specific instance of Mr. Hawkins’ 19 conduct offered to attack Mr. Hawkins’ ch aracter for truthful ness, which Rule 11- 2018 608(B) expressly prohibits. See id. (“Except for a criminal conviction under Rule 1 11-609 . . . extrinsic evidence is not ad missible to prove specific instances of a 2 witness’s conduct in order to attack or support the witness’s character for 3 truthfulness.”) The district court therefor e did not abuse its discretion in excluding 4 Mr. Montoya’s testimony. 5

{29} Defendant contends that “[r]egardle ss of whether [Mr. Montoya’s testimony] 6 was excludable under the rules of evid ence . . . the New Mexico Supreme Court 7 has specifically recognized that the rule s cannot limit a defendant’s constitutional 8 right to challenge ‘an opposing ve rsion of facts[,]’ ” quoting from State v. Johnson , 9 1997-NMSC-036, ¶ 23, 123 N.M. 640, 944 P. 2d 869. Defendant’s reliance on 10 Johnson is misplaced, primarily because nothing in Mr. Montoya’s proposed 11 testimony bore the capacity to directly ch allenge Mr. Hawkins’ testimony or his 12 credibility, and defense counsel could ha ve cross-examined Mr. Hawkins about 13 any bias he had against Defendant that might have affected his truthfulness. See id. 14 ¶ 23 (“A defendant’s right of confrontation—with its protection of the right to 15 cross-examine, test credib ility, detect bias, and othe rwise challenge an opposing 16 version of facts—is a critical limitation on the trial court’s discretion to exclude 17 evidence a defendant wishes to admit.”). Defense counsel provided no explanation 18 for his decision not to cross-examine Mr. Hawkins regarding any possible 1919 motivation he might harbor to have Defendant wrongly charged and wrongly 1 convicted. 2

{30} Moreover, Mr. Montoya’s testimony wa s not, as Defendant argues, crucial 3 to Defendant’s theory of the case, beca use nothing in Mr. Montoya’s testimony 4 would have suggested that Mr. Hawkins had a motive to lie about Defendant’s 5 involvement in the underlying crimes, an d as the district court pointed out, defense 6 counselelicited the only direct testimony from Mr. Hawkins on that topic. Mr. 7 Montoya’s proposed testimony regarding a prior act of aggression by Mr. Hawkins 8 also was not significant because both of De fendant’s coconspira tors testified in 9 detail about Defendant’s involvement in th e crimes being considered by the jury. 10 Even if the jury somehow believed th at Mr. Hawkins’ prior behavior was 11 indicative of a preexisting grudge, which then led Mr. Hawkins to lie about his 12 suspicion of Defendant’s involvement, Mr . Hawkins was not the only witness that 13 testified about Defendant’s involvement in the underlying crimes. The district 14 court’s exclusion of Mr. Montoya’s testim ony did not violate Defendant’s right of 15 confrontation, and ac cordingly we affirm. 16 V. Defendant Has Not Presented a Prim a Facie Case of Ineffective 17 Assistance of Counsel 18
{31} Defendant asserts that de fense counsel was ineffective for four reasons: (1) 19 he failed to impeach Mr. Hawkins with a pr ior criminal conviction; (2) he did not 20 timely disclose Steven Montoya as a w itness and did not understand the “full 2120 extent” of his testimony until after most of the State’s witnesses had testified; (3) 1 he chose not to call Ms. Lucero, Mr. Lucer o’s wife, to testify; and (4) defense 2 counsel’s ill health compromised his ability to effectively repres ent him. The State 3 responds that the district court’s exclus ion of Steven Montoya was not solely 4 premised on his late disclosure and that Ms. Lucero’s testimony would not have 5 been useful to Defendant, and thus ther e was no ineffective assistance of counsel. 6 We review appellate clai ms of ineffective assistance of counsel de novo. State v. 7 Cordova , 2014-NMCA-081, ¶ 6, 331 P.3d 980. 8

{32} “The Sixth Amendment to the United St ates Constitution, applicable to the 9 states through the Fourteenth Amendmen t, guarantees defendants in criminal 10 proceedings the right to eff ective assistance of counsel.” Id. “Our Supreme Court 11 has expressed a preference that ineff ective assistance of counsel claims be 12 adjudicated in habeas corpus proceedi ngs, rather than on direct appeal.” Id. ¶ 7. 13 “Therefore, this Court will only remand a case for an evidentiary hearing if the 14 record on appeal supports a prima facie case of ineffective assistance of counsel.” 15 Id. 16
{33} A prima facie case of in effective assistance of counsel requires a defendant 17 to establish that: “(1) counsel’s perform ance fell below that of a reasonably 18 competent attorney; (2) no plausible, rationa l strategy or tactic explains counsel’s 19 conduct; and (3) counsel’s ap parent failings were prej udicial to the defense.” Id. ¶ 2021 9; see also State v. Bernal , 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289 1 (“For a successful ineffective assistance of counsel claim, a defendant must first 2 demonstrate error on the part of counsel, and then show that the error resulted in 3 prejudice.”). To prove prejud ice, a defendant “must demonstrate that counsel’s 4 errors were so serious, such [as] a failu re of the adversarial process, that such 5 errors undermine judicial confidence in the accuracy and reliability of the 6 outcome.” Bernal , 2006-NMSC-050, ¶ 32 (alteration, internal quotation marks, and 7 citation omitted). If there is a “reasonabl e probability” that “the result of the 8 proceeding would have been different” but for counsel’s deficient performance, 9 such a probability is “sufficient to undermine confidence in the outcome.” Lytle v. 10 Jordan , 2001-NMSC-016, ¶ 27, 130 N.M. 198, 22 P.3d 666 (quoting Strickland v. 11 Washington , 466 U.S. 668, 694 (1984)). 12

{34} We conclude that Defendant has failed to demonstrate prejudice, a 13 deficiency which is fatal to his claim of ineffective assistance of counsel. First, 14 regarding Defendant’s asse rtion that defense counsel failed to impeach Mr. 15 Hawkins with a prior criminal conviction, the State preemptively raised the issue 16 outside the presence of the jury during trial, stating that while Mr. Hawkins had 17 been a defendant in a misdemeanor attemp ted receiving/transferring a stolen motor 18 vehicle case, he was not convicted and th e matter had been resolved by use of a 19 pre-prosecution probation program, and thus the matter could not properly be used 2022 for impeachment purposes. Rule 11-609(A) requires evidence of a criminal 1 conviction, and not merely evidence of a witness having been charged with a 2 crime, to attack that witness’s characte r for truthfulness. He re, defense counsel 3 conceded that Mr. Hawkins had not been convicted of attempted 4 receiving/transferring a stolen motor vehi cle, and on appeal failed to explain why 5 Mr. Hawkins’ criminal case was nonethel ess usable for impeachment purposes. 6 See State v. Guerra , 2012-NMSC-014, ¶ 21, 278 P. 3d 1031 (holding appellate 7 courts are not obligated to review unclear or undeveloped arguments). 8

{35} Second, because we have upheld th e district court’s ruling on the 9 inadmissibility of Mr. Montoya’s testimony, any delay in the disclosure of his 10 identity as a witness could not have prej udiced Defendant. Third, defense counsel’s 11 decision not to call Ms. Lucero as a witness was within th e bounds of trial strategy 12 afforded to criminal defense attorneys. See Lytle , 2001-NMSC-016, ¶ 43 (stating 13 that on appeal, we will not second guess th e trial strategy and tactics of defense 14 counsel). We base this c onclusion on Ms. Lucero’s brief testimony, given outside 15 the presence of the jury, concerning a conve rsation the day of the robbery between 16 Defendant and Mr. Lucero regarding “drugs and [her] vehicle.” Mr. Lucero told 17 Ms. Lucero that he agreed to give De fendant a ride to the Hawkins’ house in 18 exchange for drugs. Ms. Lucero did not see Mr. Lucero and Defendant leave 19 together, nor did she hear discussions about planning a kidnapping or robbery. 2023 Following her testimony, defense counsel ma de the strategic decision not to call 1 her to testify. 2

{36} Last, as discussed previously, Defenda nt failed to demonstrate that he was 3 prejudiced by defense counsel’s health i ssues and alleged a ttendant lack of 4 preparation in the months prior to trial. While nothing in our decision today 5 prevents Defendant from pursuing a future habeas corpus proceeding based on 6 defense counsel’s constitutional effectiven ess vis-à-vis his pretrial illness, we 7 cannot make a determination of prejudice in the first instance on the record before 8

us. See State v. Crocco , 2014-NMSC-016, ¶ 24, 327 P. 3d 1068 (“If facts beyond 9 those in the record on appeal could establish a legitimate claim of ineffective 10 assistance of counsel, Defenda nt may assert it in a hab eas corpus proceeding where 11 an adequate factual record can be de veloped for a court to make a reasoned 12 determination of the issues.”). 13

{37} Because Defendant has not shown that he suffered prejudice as a result of 14 defense counsel’s representation, he has fa iled to establish a prima facie case of 15 ineffective assistance of counsel, as is re quired in order to pr evail on this issue on 16 direct appeal. Accordingly, we decline to remand to the district court for an 17 evidentiary hearing. See State v. Castro , 2017-NMSC-027, ¶¶ 35-36, 402 P.3d 688 18 (holding defendant’s claim of ineffec tive assistance of counsel “more properly 1924 brought through habeas corpus petition” because “there ar e insufficient facts in the 1 record” without defense counsel’s “r esponse to these contentions”). 2 VI. We Decline to Review Defendant’s Argument That the District Court 3 Erred by Denying Defendant’s Request ed Jury Instruction Concerning 4 the Unreliability of Accomplice Testimony 5
{38} We decline to review Defendant’s argu ment that the district court erred by 6 denying Defendant’s re quested jury instruction c oncerning the unreliability of 7 accomplice testimony for two reasons. First, the only supposedly binding authority 8 Defendant offers in support of his argument that De fendant was entitled to a jury 9 instruction about the unreliability of accomplice testimony is Sarracino , 1998- 10 NMSC-022. Defendant’s reliance on this case is mystifying because it holds that a 11 defendant is not entitled to a jury instruction cautioning the jury to weigh 12 accomplice testimony with greater care and cau tion than that of ordinary witnesses. 13 Id. ¶¶ 8, 17. 14

{39} Second, Defendant asserts that he sought such a jury instruction in this case, 15 but fails to provide the text of that jury instruction or even a citation to the record 16 showing that the jury instruction was te ndered and discussed by the parties during 17 trial. See Rule 12-318(A) NMRA (generally requiring record citations in 18 appellant’s brief in chief in both the su mmary of proceedings and in support of 19 appellant’s arguments). We are not obligated to comb the record in an attempt to 20 find the proposed jury instruction at issue and then independently ascertain 2125 whether this issue was preserved for review, nor are we obligated to do 1 Defendant’s research. See Guerra , 2012-NMSC-014, ¶ 21 (holding appellate 2 courts are not obligated to review unclear or undeveloped arguments); State v. 3 Clifford , 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 (reminding counsel 4 that appellate courts are not requir ed to do the parties’ research). 5 VII. The Accomplice Testimony Offered Against Defendant Was Sufficient 6 to Support His Convictions 7
{40} Defendant challenges the sufficiency of his accomplices’ testimony as the 8 primary basis upon which his convictions are supported. In so doing, Defendant 9 offers no argument for why that testimony was unreliable other than the allegation 10 that Mr. Williams and Mr. Lucero received “favorable pleas dependent upon their 11 testimony[.]” Defendant does not provide cita tion to the record in support of this 12 allegation or explain why Mr. Williams’s and Mr. Lucero’s pleas were more 13 favorable than they would have been ab sent their agreement to testify against 14 Defendant. The State argues that Defendant impermissibly asks us to reweigh the 15 evidence, that Mr. Williams ’ and Mr. Lucero’s testimony was consistent with the 16 statements they provided to law enforc ement prior to entering into their plea 17 agreements, and that the jury had disc retion to determine witness credibility. 18 A. Standard of Review 19
{41} We review sufficiency of the ev idence issues deferentially, viewing 20 evidence in “the light most favorable to the guilty verdict, indulging all reasonable 2126 inferences and resolving all conflicts in the evidence in favor of the verdict.” State 1 v. Garcia , 2016-NMSC-034, ¶ 15, 384 P.3d 1076 (internal quota tion marks and 2 citation omitted). We “determine whether subs tantial evidence of either a direct or 3 circumstantial nature exists to support a verdict of guilt beyo nd a reasonable doubt 4 with respect to every elemen t essential to a conviction.” Id. (internal quotation 5 marks and citation omitted). 6 We will not invade the jury’s province as fact-finder by second7 guessing the jury’s decision concerni ng the credibility of witnesses, 8 reweighing the evidence, or substitu ting its judgment for that of the 9 jury. So long as a rational jury could have found beyond a reasonable 10 doubt the essential facts required for a conviction, we will not upset a 11 jury’s conclusions. 12 Id. (alterations, internal quotati on marks, and citation omitted). 13 B. Analysis 14
{42} Other than his wish that this Court wi ll do what it has repeatedly stated it 15 will not do—substitute our judgment for th at of the jury—Defendant offers no 16 basis to conclude that the evidence of his guilt, even though presented most 17 directly by Mr. Williams and Mr. Lucero, is so unreliable as to be legally 18 insufficient. First, both witnesses were questioned at length dur ing trial regarding 19 their plea agreements and their pre-pl ea agreement statements to detectives. 20 Defense counsel cross-examined Mr. W illiams about the cont ours of his plea 21 agreement, confirming that under his pl ea agreement he faced nine years of 22 incarceration exposure, which was less than what he would have faced without the 2327 plea agreement. Defense counsel also cr oss-examined Mr. Lucero about his plea 1 agreement, pointing out that he orig inally had approximately 100 years of 2 incarceration exposure on this case includi ng mandatory enhanc ement based on his 3 prior felony convictions, but ultimately ended up with six y ears of incarceration 4 exposure under his plea agreement. 5

{43} Defendant cites only to State v. Brown , 1998-NMSC-037, ¶¶ 16, 24, 126 6 N.M. 338, 969 P.2d 313, in support of hi s argument that the accomplices’ plea 7 agreements alone made th eir testimony unreliable. Brown , however, did not 8 consider the issue of accomplice testimony through the prism of evidence 9 sufficiency; instead, it considered whethe r a defendant’s due process rights were 10 violated by an impermissibly coercive immunity agreement for a testifying 11 accomplice. Id. ¶¶ 17-24. The Brown court ultimately concluded that the 12 accomplice testimony was not inherently unreliable. Id. ¶ 24. Brown is, therefore, 13 distinguishable from the instant case because it concerns use immunity, rather than 14 whether a plea agreement renders accompli ce testimony inherently unreliable such 15 that it cannot constitute substantial evidence. 16

{44} Given that Mr. Williams and Mr. Lu cero were extensively questioned by 17 both parties during trial regarding their cooperation and plea agreements, the jury 18 was free to weigh their credibility accordingly. See State v. Candelaria , 2019- 19 NMSC-004, ¶ 45, 434 P.3d 297 (“The jury al one is the judge of the credibility of 2028 the witnesses and determines the weightafforded to testimony.”) (internal 1 quotation marks and citation omitted). “[T]he testimony of a single witness is 2 sufficient evidence for a conviction.” State v. Soliz , 1969-NMCA-043, ¶ 8, 80 3 N.M. 297, 454 P.2d 779. We will not otherw ise reweigh the evidence the jury 4 received. See Garcia , 2016-NMSC-034, ¶ 15. We ther efore affirm Defendant’s 5 convictions as supported by substantial evidence. 6 VIII. The District Court Did Not Err in Denying Defendant’s Request for a 7 Mistrial Due to the State’s Allege d Mischaracterization in Its Rebuttal 8 Closing Argument 9
{45} Defendant asserts that the prosecuto r’s statement in its rebuttal closing 10 argument that “the State ultimately, unbe knownst to [Mr. Lucero], dismissed [Ms. 11 Lucero’s] case for lack of ev idence[,]” prejudiced him to the extent that reversal 12 and a new trial are required because th e statement “undermined one of [Mr. 13 Lucero’s] possible motives to plead guilty and testify against [Defendant].” The 14 State responds that there was no misstatement or misrepresentation, but also that if 15 there was, it was not prejudici al to Defendant. The State also argues that “[i]t is not 16 at all clear that the prosecutor’s comment s” implied “that [Ms. Lucero’s] charges 17 were dismissed before [Mr.] Lucero pled,” which the State concedes would have 18 been improper. Additionally, the State asserts that the prosecutor’s statement was 19 supported by the evidence adduced at tr ial because the State dismissed Ms. 2029 Lucero’s case prior to trial and Mr. Lucero testified that he did not know about the 1 disposition of those charges. 2 A. Standard of Review 3
{46} We review a motion for a mist rial for abuse of discretion. State v. Smith , 4 2016-NMSC-007, ¶ 69, 367 P.3d 420. “The power to declare a mistrial should be 5 exercised with the greatest caution.” Id. (alteration, internal quotation marks, and 6 citation omitted). “An argument for mistri al must show that the error committed 7 constituted legal error, and the error was so substantial as to require a new trial.” 8 Id. Additionally, “we afford trial judges broad discretion in managing closing 9 argument because they are in the best position to assess the impact of any 10 questionable comment.” State v. Sena , 2018-NMCA-037, ¶ 13, 419 P.3d 1240, 11 cert. granted , 2018-NMCERT-___ (No. S-1-SC-36932, May 25, 2018) (internal 12 quotation marks and citation omitted). “The prosecution has . . . wide latitude 13 during closing arguments[,]” but “[a] pros ecutor’s remarks must . . . be based on 14 the evidence or made in response to the defendant’s arguments.” Id. 15 B. Analysis

{47} During Defendant’s closing argument, defense counsel stated, “It’s funny 16 because in [Mr. Lucero’s plea agreement listing coconspirators], [Ms.] Lucero is 17 left out. But here in [Mr. Williams’s pleaagreement], Ms. Lucero is in there. So 18 everything is basically just manipulated fo r the State to get what it’s trying to get, 1930 which is a conviction on [Def endant]. They take Ms. Lu cero out for Mr. Lucero 1 and the admission of conspiracy.” Defens e counsel continued, “And I’m talking 2 about [Ms.] Lucero, who is a lleged to be part of this conspiracy, did not come in 3 here and tell you that [Defendant] was the one involved in this conspiracy, who did 4 this.” The entirety of the pr osecutor’s statement in rebuttal closing that is now the 5 subject of this appeal is the following: “But the defense did actually tell you that 6 [Mr. Lucero] was lying and made a lot of th e fact that [Ms. Lucero] wasn’t brought 7 here to testify, and there wa s no agreement for [Mr. Lucero] to testify against [Ms.] 8 Lucero. Now, what you did hear was that the State ultimately, unbeknownst to Mr. 9 Lucero, dismissed her case for lack of evidence.” 10

{48} Defendant objected that Ms. Lucero’ s case was dismissed “after [Mr. 11 Lucero] pled.” The district court overrule d the objection, but instructed the jury 12 that what the attorneys say during clos ing arguments is “not evidence” and that 13 they would “be the ultimate judge of th e facts[,]” and if they remembered 14 something differently than the attorney s, the jury should “go with [their] 15 memories.” After closing arguments when the jury was deliberating, Defendant 16 moved for a mistrial, arguing that the St ate’s statement “causes extreme prejudice 17 to the defendant, because it undermines th e credibility of our closing . . . [a]nd 18 . . . gives the jury the impression that a key motivation for Mr. Lucero to lie was 19 not present when he . . . en tered into his plea agreemen t and made this admission 2031 of conspiracy.” The district court denied Defendant’s motion for a mistrial, stating 1 that “the jury was cautioned a number of times, that what [the] attorneys say is not 2 evidence, [and] what they need to do is rely on their memories of the testimony[.]” 3 The district court concluded that Defendant was not prejudiced to the extent 4 Defendant argued. 5

{49} It is not clear to us whether th e prosecutor’s statement during rebuttal 6 closing argument implied that the State dismissed Ms. Lucero’s case before Mr. 7 Lucero entered into his plea agreement. Re gardless, Defendant has not shown that 8 he was prejudiced by the prosecutor’s statem ent, much less that he was prejudiced 9 so substantially that the district court a bused its considerable discretion in denying 10 Defendant’s motion for a mistrial. Even if the jury believed that Ms. Lucero’s case 11 was dismissed before Mr. Luce ro accepted his plea agreem ent, Mr. Lucero testified 12 and the State reiterated thatMr. Lucero did not know what the ultimate disposition 13 of Ms. Lucero’s case was, much less that the State had dismissed her case shortly 14 before trial. Because he di d not know the status of Ms . Lucero’s case, Mr. Lucero 15 could not have been motivated to lie during his testimony in order to obtain 16 favorable treatment of his wife’s criminal case. The district cour t’s instruction that 17 the attorneys’ argument was not evidence and that the jury should rely on their 18 own memories of the evidence was ther efore sufficient to cure any possible 19 prejudice resulting from the prosecutor’s stat ement, to the extent that any such 2032 prejudice exists. See State v. Storey , 2018-NMCA-009, ¶ 60, 410 P.3d 256 (“The 1 trial court is given, and must exercise, considerable discretion in evaluating the 2 propriety of argument and in curing any alleged defects.”), cert. denied , ___- 3 NMCERT-___ (No. S-1-SC-36695, Oct. 31, 2017). We concl ude that to the extent 4 the prosecutor’s statement was improper, Defendant was not prejudiced because of 5 it, and therefore the district court di d not abuse its discretion in denying 6 Defendant’s motion for a new trial. 7 IX. Cumulative Error 8
{50} Defendant argues that “the combined e ffect” of all of the district court’s 9 errors requires reversal. In the absence of any error, much less multiple errors, we 10 disagree, and conclude that there was no cumulative error. 11 CONCLUSION 12
{51} For the aforementioned reasons, we affirm Defendant’s convictions for 13 armed robbery, conspiracy to commit armed robbery, aggravated burglary, and 14 conspiracy to commit aggravated burglary. We remand with instructions that the 15 district court vacate one of Defendant’s convictions for conspiracy and to 16 resentence Defendant accordingly. 17

{52} IT IS SO ORDERED. 18

_________________________________ 19 J. MILES HANISEE, Judge 2033 WE CONCUR: 1

________________________________ 2 KRISTINA BOGARDUS, Judge 3

_________________________________ 4 JACQUELINE R. MEDINA, Judge 5