This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,650 9 GILBERT BENALLIE, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 Thomas J. Hynes, District Judge 13 Gary K. King, Attorney General 14 Margaret E. McLean, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Frechette & Associates, P.C. 18 Todd Hotchkiss 19 Albuquerque, NM 20 for Appellant 21 MEMORANDUM OPINION 22 WECHSLER, Judge. 232 The opinion filed in this case on December 9, 2009 is hereby withdrawn and the 1 following substituted therefor. The motion for rehearing of Defendant Gilbert 2 Benallie is denied. 3 Defendant appeals his convictions fo r DWI and for failure to display 4 registration plate. The notice proposed to affirm. Defendant filed a timely 5 memorandum in opposition (MIO), and the St ate filed a timely response pursuant to 6 a granted motion for extension of time. We remain unpers uaded by Defendant’s 7 arguments, and therefore we affirm. As di scussed in our notice and agreed to by the 8 State in its response, we further remand tothe district court for the limited purpose of 9 correcting Defendant’s judgment and sentence to reflect that he was convicted for a 10 violation of NMSA 1978, Section 66-8-102(A) (2008) rather than for a violation of 11 Section 66-8-102©. 12 Issues (1) and (2) 13 These issues relate to Defendant’s centr al contention that there was a lack of 14 substantial evidence to support his convic tion for driving while under the influence 15 of intoxicating liquor or drugs (DWI). [DS 2, 5; MIO 11] 16 We review the evidence to determine “w hether substantial evidence of either 17 a direct or circumstantial nature exists to support a verdict of guilt beyond a 183 reasonable doubt with respectto every element essen tial to a conviction.” State v. 1 Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) . Under this standard, “[w]e 2 view the evidence in the light most favorableto supporting the verdict and resolve all 3 conflicts and indulge all inferences in favor of upholding the verdict.” State v. 4 Hernandez , 115 N.M. 6, 26, 846 P.2d 312, 332 (1993). We do not weigh the 5 evidence, nor substitute our judgment for thatof the factfinder, so long as there is 6 sufficient evidence to support the verdict. Sutphin , 107 N.M. at 131, 753 P.2d at 7 1319. 8 Defendant’s convic tion for DWI requires that Defendant operated a motor 9 vehicle and that, at the time, Defendant was under the influence of intoxicating liquor 10 -- that is, as a result of drinking liquor, Defe ndant was less able to the slightest degree, 11 either mentally or physically, or both, to exercise the clear judgment and steady hand 12 necessary to handle a vehicle with safety to the person and the public. [RP 1-2, 128- 13 31] See § 66-8-102(A). [RP 100] 14 The facts provide that Officer Sexton [RP 54] stopped Defendant’s vehicle after 15 observing Defendant make a wide right turn , cross the painted divider into oncoming 16 traffic, and almost strike a parked vehicle. [RP 13, 56; MIO 3] Officer Sexton could 17 smell the odor of alcohol emanating from the interior of Defendant’s vehicle[RP 13] , 184 as well as from Defendant’s person once he exited the vehicle. [RP 57] In addition, 1 Officer Sexton observed that Defendant’s eyes were red, bl oodshot, and watery. [RP 2 13] Defendant admitted that he had beendrinking the night before and at around 3 12:00 that day. [RP 13] Officer Sexton administered field sobriety tests [RP 13] , and 4 testified that Defendant performed in a manner consistent with impairment. [RP 57, 5 60] Specifically, on the “walk and turn test ,” Officer Sexton observed all eight clues. 6 [RP 14, 60] Defendant had difficulty maintaini ng his balance, missed heel-to-toe on 7 every step, raised his arms mo re than six inches from his sides, stepped off of the line 8 on several steps, performed the turn without planting his front foot, did not watch his 9 feet or count the steps out loud as instructed to do so prior to beginning the test, and 10 took an uneven number of steps in the different direc tions. On the “one leg stand 11 test,” Officer Sexton observed a total of three clues, and Defe ndant began swaying 12 from side to side. [RP 14] 13 We hold that the foregoing facts support Defendant’s conviction for DWI. See 14 State v. Sparks , 102 N.M. 317, 320, 694 P.2d 1382, 1385 (Ct. App. 1985) (defining 15 substantial evidence as that evidence which a reasonable person would consider 16 adequate to support a de fendant’s conviction); see also State v. Gutierrez , 17 1996-NMCA-001, ¶ 4, 121 N.M. 191, 909 P.2d 751 (filed 1995) (upholding a DWI 185 conviction based on behavior evidence whenthe defendant smelled of alcohol, had 1 bloodshot and watery eyes, failed field sobriety tests, admitted to drinking alcohol, 2 and the defendant’s vehicle was w eaving into other traffic lanes); State v. Neal , 2008- 3 NMCA-008, ¶ 29, 143 N.M. 341, 176 P.3d 330 (filed 2007) (holding that evidence 4 was sufficient to support a reasonable inference that the defe ndant was under the 5 influence of alcohol when, among other factor s, he was seen veering over the shoulder 6 line of the road; he smelled of alcohol and had bloodshot, watery eyes; he admitted 7 to drinking; he appeared to the officer to be under the influe nce of alcohol; and he 8 failed on several field sobriety test criteria). 9 Although Defendant’s blood and breath tests showed readings of .05 and .06, 10 within the legal limits [RP 14, 61; MIO 7] , it was within the jury’s prerogative to rely 11 instead upon behavioral evidence to convict Defendant for DWI. See generally State 12 v. Foster , 1999-NMSC-007, ¶ 42, 126 N.M. 646, 974 P.2d 140 (recognizing that it is 13 up to the jury to weigh any contradictory evidence). We recognize also that 14 Defendant maintains that his failure to ade quately perform on the field sobriety tests 15 was a reflection of an un-level surface [RP 59; MIO 3, 7] and lack of an actual line 16 for use in the “walk and turn test” [MIO 25] , as well as his restless leg syndrome, 17 body weight, back problems, and other health problems. [RP 68-73; MIO 6, 8-10] 186 Again, it was within the jury’s prerogative to weigh the evidence and reject 1 Defendant’s version of the events. See State v. Nichols , 2006-NMCA-017, ¶ 11, 139 2 N.M. 72, 128 P.3d 500 (filed 2005) (recognizing th at the jury, as trier of fact, is 3 entitled to weigh conflicting evidence); State v. Sutphin , 107 N.M. at 131, 753 P.2d 4 at 1319 (holding that the factfinder may reject the defendant’s version of events). And 5 although Defendant’s expert witness, Dr. Saltzman, testified that he believed that 6 Defendant’s medical conditions would make it very difficult to complete the field 7 sobriety tests [MIO 9-10] , the jury was free to reject the expert’s opinion. See State 8 v. Alberico , 116 N.M. 156, 164, 861 P.2d 192, 200 (1993) (recognizing that “an 9 expert’s opinion is not conclusive of a fact in issue even though the opinion may be 10 uncontroverted). In this regard, we note that Dr. Saltzman also acknowledged on 11 cross-examination that alcohol could cause Defendant to perform as he did on the 12 field sobriety tests. [MIO 10] 13 Lastly, to the extent Defendant argues that his performance on the field sobriety 14 tests was not a valid factor to consider inassessing the sufficiency of his conviction 15 [MIO 21-23] , we disagree. As noted above, De fendant’s conviction requires that, as 16 a result of drinking liquor, he was less able to the slightes t degree, either mentally or 17 physically, or both, to exerci se the clear judgment and steady hand necessary to handle 187 a vehicle with safety to the person and the public. See § 66-8-102(A). Thus, when 1 our notice at page 4 stated that “Defendant performed [on the field sobriety tests] in 2 a manner consistent with impairment” [CN 4; MIO 22] , we were referring not to 3 Defendant’s BAC level, but instead to evidence supporting the conclusion that 4 Defendant was under the influence of intoxicating liquor within the meaning of 5 Section 66-8-102(A). See, e.g. , State v. Neal, 2008-NMCA-008, ¶ 26 (stating that 6 “[t]he statute gives notice, according to the plain meaning of the word ‘influence,’ that 7 the Legislature intends to criminalize a condition less than intoxication, but 8 ‘influenced’ to any degree by alcohol, no matter how slight”). 9 Motion to amend 10 In disputing our sufficiency analysis, De fendant argues for the first time in his 11 MIO that the district court improperly admitted Officer Sexton’s testimony that 12 “[b]ased on all of [his] observations, there is a 90% chance [Defendant] was 13 impaired. ” [MIO 6, 12-14, 19] We note initially that although the officer’s testimony 14 is a relevant consideration in evaluating the sufficiency of the evidence, whether or 15 not such evidence was properly admitted is a separate issue fro m one contesting the 16 sufficiency of the evidence. See State v. Post , 109 N.M. 177, 181, 783 P.2d 487, 491 17 (Ct. App. 1989) (recognizing that, in review ing the sufficiency of the evidence, the 188 appellate court looks at all evidence admitted, including wrongfully admitted 1 evidence). Because this particular argument was not rais ed in Defendant’s docketing 2 statement, we consider Defendant’s argument as a motion to amend the docketing 3 statement to add the issue of whether the testimony was wrongfully admitted. 4 Defendant argues that admission of Officer Sexton’s testimony was comparable 5 to the wrongfully admitte d testimony addressed inState v. Marquez , 2008-NMCA6 133, ¶ 25, 145 N.M. 31, 193 P.3d 578, rev’d in part , 2009-NMSC-055, ___ N.M. ___, 7 ___ P.3d ___. [MIO 13] In Marquez , the officer testified that, “based on the clues 8 of all three field sobriety tests, includi ng the HGN test, the probability that a person’s 9 breath score was over the le gal limit was in the ninetieth percentile.” 2008-NMCA10 133, ¶ 8. This Court held that such te stimony was wrongfully admitted as scientific 11 evidence without first qualifying the officer as an expert and establishing the 12 evidentiary reliability of the scientific know ledge but that the error was harmless. Id. 13 ¶ 19. Our Supreme Court reversed our holding that the error was harmless because 14 the evidence was “likely to impact the jury ’s verdict.” 2009-NMSC -055, ¶ 23. In the 15 present case, however, even assuming thatOfficer Sexton’s testimony is comparable 16 to the officer’s testimony in Marquez , one significant difference is that Defendant 17 failed to object to Offi cer Sexton’s testimony. [MIO 6] Because of this lack of 189 preservation, we consider whether admission of Officer Sexton’s testimony 1 constituted “plain error.” [MIO 17] See generally State v. Contreras , 120 N.M. 486, 2 492, 903 P.2d 228, 234 (1995) (reviewing un-objected to evidentiary questions for 3 plain error), limitation of holding on other groundsrecognized by State v. Rackley , 4 2000-NMCA-027, ¶¶ 24-25, 128 N.M. 761, 998 P.2d 1212. In light of the 5 aforementioned ample substantial eviden ce in support of Defendant’s conviction, 6 under a plain error analysis, we are not “c onvinced that admission of the testimony 7 constituted an injustice that creates gr ave doubts concerning the validity of the 8 verdict.” State v. Lucero , 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993) (internal 9 quotation marks and citation omitted). For this reason, we deny Defendant’s motion 10 to amend. See State v. Sommer , 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 11 1994) (recognizing that issues sought to be presented in a motion to amend must be 12 viable). 13 Issue (3) 14 Defendant continues to argue that his trial counsel was ineffective. [ MIO 14] 15 To establish a prima facie case of ineff ective assistance of counsel, Defendant must 16 show that counsel’s performance fell below that of a reasonably competent attorney 17 and that the defendant was prejudi ced by the deficient performance. State v. Aker , 1810 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384. 1 Defendant argues specificallythat counsel failed to exercise the skill of a 2 reasonably competent attorney because hefailed to object to Officer Sexton’s 3 testimony. [MIO 14] Whether or not to object, howev er, can be a matter of trial 4 tactics, and the failure to object does not establish ineffective assistance of counsel. 5 State v. Peters , 1997-NMCA-084, ¶ 40, 123 N.M. 667, 944 P.2d 896. In this case, 6 counsel may have elected not to object for any number of reasons, including, for 7 example, a determination that any objec tion would unnecessarily call attention to 8 Officer Sexton’s testimony. See Lytle v. Jordan , 2001-NMSC-016, ¶ 43, 130 N.M. 9 198, 22 P.3d 666 (holding that “we will not s econd guess the trial strategy and tactics 10 of the defense counsel on appeal” (internal quotation marks and citation omitted)). 11 Because Defendant has failed toestablish a prima facie cas e of ineffective assistance 12 of counsel, we affirm. 13 Issue (4) 14 Defendant does not contest the calendar notice’s proposed holding that the 15 district court did not improperly restrict the cross-examination of Officer Sexton 16 regarding his reference to the “28 different signs that we look for” of impairment. 17 [CN 6-7; DS 4, 5] See generally State v. Mondragon , 107 N.M. 421, 423, 759 P.2d 1811 1003, 1005 (Ct. App. 1988) (holding that a “party responding to a summary calendar 1 notice must come forward and specifically point out errors of law and fact”). For 2 reasons set forth in the notice, we hol d that cross-examination was not unduly 3 restricted. 4 Lastly, apart from the merits of the issu es raised by Defendant, as discussed in 5 our notice and agreed with by the State in its Response to our notice, although 6 Defendant was initially charged for a violation of Section 66-8-102© [RP 1-2] , he 7 was ultimately tried by implied consent—as reflected by the jury instruction to the 8 jury—for a violation of Section 66-8-102(A). [RP 100] For this reason, we remand 9 for the limited purpose that the judgment be corrected to reflect Defendant’s 10 conviction for a violation of Section 66-8-102(A) rather than for a violation of Section 11 66-8-102©. [RP 128] 12 For reasons discussed above, we affirm on the merits and remand for the limited 13 purpose of correcting Defendant’s judgment to reflect the correct crime for which he 14 convicted. 15 IT IS SO ORDERED. 16

_______________________________ 17 JAMES J. WECHSLER, Judge 1812 WE CONCUR: 1

_____________________________ 2 MICHAEL E. VIGIL, Judge 3

_____________________________ 4 TIMOTHY L. GARCIA, Judge 5