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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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. A-1-CA-34456 4 TAD WILLIAM WOODS, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 James Waylon Counts, District Judge 8 Hector H. Balderas, Attorney General 9 Maha Khoury, Assistant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 Nina Lalevic, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 HANISEE, Judge. 182 {1} As a result of a series of events th at occurred in Bent, New Mexico, on the 1 evening of November 1, 2011, a jury found Defendant Tad William Woods guilty of 2 aggravated burglary, larceny of a firearm, two counts of aggravated assault with a 3 deadly weapon, aggravated fleeing a law enforcement offi cer, shooting at a dwelling, 4 breaking and entering, and three counts of ne gligent child abuse. The district court 5 entered judgment against Defendant in accordance with the jury verdicts and 6 sentenced Defendant to thirty-eight years’ imprisonment. 7 {2} On appeal, Defendant (1) challenges the sufficiency of the evidence to convict 8 him of all but the child abus e charges and one of the two aggravated assault with a 9 deadly weapon charges, (2) argues that the district court committed instructional error, 10 (3) contends he was unfairly prejudiced by certain testimony that was admitted at trial, 11 (4) complains his right to a speedy trial was violated, and (5) claims he received 12 ineffective assistance of counsel. We affirm. 13 BACKGROUND 14 {3} Prior to October 2011, Defendant and Doralene Sanders, along with Sanders’ 15 two younger daughters (ages five and seventeen at the time) , had been living together 16 on Sanders’ property. After Defendant moved out, Sanders changed the locks on her 17 home and did not give Defendant the new keys or the new combination to the locks. 18 On November 1, 2011, Defendant called Sanders to see if she and her younger 193 daughter wanted to go out and eat. Sanders noticed that Defendant was intoxicated 1 when they spoke, and the conversation did not last long. When Defendant continued 2 to call her “over and over and over” later in the day, Sanders would not answer his 3 calls. When Sanders, who was not at home atthe time, finally took Defendant’s call, 4 Defendant “was screaming, cussing [Sanders] out, asking why [Sanders] changed the 5 locks on the garage, saying th at [Sanders] couldn’t keep [Defendant] out,” and asked 6 where Sanders was. Sanders lied to Defendant regarding her whereabouts because she 7 was scared. 8 {4} Upon returning home later that evening with her five-year-old daughter, who 9 was asleep in the backseat of the vehi cle, Sanders saw Defendant coming down the 10 hill from her property. As Sanders was pulling into her driveway and up to her house, 11 Defendant rear-ended Sanders ’ vehicle. Defendant rear-ended Sanders’ vehicle a 12 second time after Sanders had parked, pu tting Sanders in fear of her and her 13 daughter’s safety. Defendant th en got out of his truck, started beating the windshield 14 of Sanders’ vehicle, insisted that Sanders and her daughter exit the vehicle, and 15 threatened to get in his truck and pus h Sanders’ vehicle through the house. Sanders 16 noticed, then, that the doors to her home and garage were wide open and that lights 17 were on that were not on before. When Sanders asked Defendant how he had gotten 18 into the house, Defendant told her “he had a key to open up anything” and that she 194 could not keep him out. Sanders later concluded that De fendant must have entered 1 through the window in her spa room. Defendanteventually left Sanders’ property, but 2 not before he accused her of “sleeping w ith everybody,” threatened her with belts, 3 pulled her hair and repeatedlyslapped her, and threatenedto kill himself. Soon after 4 leaving, Defendant called Sanders and told her that hehad taken her .38-caliber 5 revolver that she kept under her mattress. Upon checking and seeing that the gun was 6 gone, Sanders called the Otero County Sheriff’s office to report the stolen gun, which 7 was loaded, and that Defendant had gone to the church near her house. 8 {5} Otero County Sheriff’s Deputy Edward Garcia and Sergeant Geraldine Martinez 9 responded to the call and went to the church. Deputy Garcia, who was in uniform and 10 driving a marked vehicle, drove to the b ack of the church, turned on his emergency 11 lights, and positioned his vehicle to block Defendant’s truck. De fendant, who was still 12 inside his truck, backed up and attempte d to drive around Deputy Garcia’s vehicle. 13 Deputy Garcia blocked Defendant’s truck with his vehi cle but then got out and ran 14 because Defendant’s vehicle “came at [him]” like Defendant “was going to run [him] 15 over,” causing Deputy Garcia tofear for his life. Defendant, ignoring Deputy Garcia’s 16 repeated orders to get out of his truck, then used his truck to hit Deputy Garcia’s 17 vehicle before fleeing the scene. As Defendant was fleeing the church parking lot, 181 The parties stipulated to sever and try separately Count 13 because of the 18 potentially prejudicial nature of the charge. 19 5 Sergeant Martinez—who had witnessed Defendant “ramming” Deputy Garcia’s 1 vehicle—shot at Defendant, striking and non-fatally wounding him in the head. 2 {6} Defendant returned to Sanders’ home and proceeded to shoot at the front door 3 and into the house. One of the shots became lodged in th e door; the other penetrated 4 the door, struck the wall above a bedroom door on the far side of the house, and 5 landed on the floor in front of the bedroom. Sanders, who was insidewith both of her 6 daughters—the older one having return ed home just prior to Defendant’s 7 reappearance—and having heard “gunfire going through [the] home,” hid with her 8 daughters in a bedroom closet and called 911. Defendant entered the house by 9 breaking a bedroom window and held Sanders and her daughters hostage for over 10 three hours before he eventually surrendered. 11 {7} Defendant was charged with thirteen di fferent counts, twelve of which were 12 tried together to a jury, 1 and ten of which the jury convi cted him. This appeal resulted. 13 DISCUSSION 14 {8} Defendant makes numerous arguments on appeal, which we consolidate as 15 follows: (1) the State failed to present su fficient evidence to convict Defendant of 16 shooting at a dwelling, aggravated burglary, breaking and entering, larceny of a 17 firearm, aggravated assault with a dead ly weapon, and aggravated fleeing a law 186 enforcement officer; (2) the district c ourt committed fundamental error by failing to 1 instruct the jury on an essential element of aggravated fleeing; (3) Defendant was 2 unfairly prejudiced by certain testimony elicite d at trial; (4) Defendant’s right to a 3 speedy trial was violated; and (5) Defendant received ineffective assistance from his 4 trial counsel because trial counsel failed torequest an intoxication instruction. We 5 address each issue in turn. 6 I. The State Presented Sufficient Evidence to Convict Defendant of All 7 Complained-of Counts 8 {9} Defendant argues that there was insufficient evidence to support his convictions 9 for (1) aggravated burglary (Count 1), (2) larceny of a firearm (Count 2), (3) 10 aggravated assault with a deadly w eapon based on rear-endi ng Sanders’ vehicle 11 (Count 3), (4) aggravated fleeing a law en forcement officer (Count 5), (5) shooting 12 at a dwelling (Count 7), and (6) breaki ng and entering (Count 9). We disagree. 13 Standard of Review 14 {10} “The test for sufficiency of the evid ence is whether substantial evidence of 15 either a direct or circumstantial nature exists to support a verdict of guilt beyond a 16 reasonable doubt with respect to every element essential to a conviction.” State v. 17 Cabezuela , 2015-NMSC-016, ¶ 14, 350 P.3d 1145 (internal quotation marks and 18 citation omitted). Our review i nvolves a two-step process inwhich we first “view the 19 evidence in the light most favorable to the guilty verdict, indulging all reasonable 207 inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. 1 Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We then “evaluate 2 whether the evidence, so viewed, supports the verdict beyond a reasonable doubt.” 3 State v. Garcia , 2016-NMSC-034, ¶ 24, 384 P.3d 1076. We disregard all evidence and 4 inferences that support a different result. See State v. Rojo , 1999-NMSC-001, ¶ 19, 5 126 N.M. 438, 971 P.2d 829. The appellate courts “will not i nvade the jury’s province 6 as fact-finder by second-guessing the jury ’s decision concerning the credibility of 7 witnesses, reweighing the evidence, or subs tituting its judgment for that of the jury.” 8 State v. Garcia , 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (alterations, 9 internal quotation marks, and citation omitted). 10 The State Presented Sufficient Evid ence to Support Defendant’s Aggravated 11 Burglary Conviction 12 {11} The jury in this case was instructed in pertinent part that in order to convict 13 Defendant of Count 1, the State had to prove beyond a reasonable doubt that 14 Defendant: (1) “entered a dwelling without authorization”; (2) “entered the dwelling 15 with the intent to commit a theft when inside”; and (3) “became armed with a .38 16 revolver after entering[.]” The jury heard fro m Sanders that she had changed her locks 17 and not given Defendant the key or combin ation code to enter, meaning he did not 18 have authorization to enter her dwelling. Sanders also te stified that Defendant called 19 and told her that he had taken her .38 revol ver from under her mattress—i.e., became 208 armed with it—and that she immediately verified that the gun was missing. Regarding 1 the element of intent, the intent to co mmit theft can be reasonably inferred from 2 evidence showing that property was, i ndeed, stolen from within a dwelling. See State 3 v. Mireles , 1971-NMCA-027, ¶ 6, 82 N.M. 453, 483 P.2d 508 (explaining that 4 evidence that property from with in a residence had been stol en indicated an intent to 5 commit theft). Furthermore, a jury may re ly on circumstantial evidence to infer that 6 the defendant intended to commit a theft, see State v. Tixier , 1976-NMCA-054, ¶¶ 6-7, 7 89 N.M. 297, 551 P.2d 987, and “burglarious in tent can be reasonably and justifiably 8 inferred from the unauthorized entry alone.” State v. Castro , 1979-NMCA-023, ¶ 19, 9 92 N.M. 585, 592 P.2d 185, overruled on other grounds by Sells v. State , 1982- 10 NMSC-125, ¶¶ 7-10, 98 N.M. 786, 653 P.2d 162. Viewed in the light most favorable 11 to affirming the guilty verdict, the f acts support the jury’s determination that 12 Defendant committed an aggravated burglary. 13 The State Presented Sufficient Evidence to Convict Defendant of Larceny of a 14 Firearm 15 {12} The jury was instructed in pertinent part that in order to convict Defendant of 16 Count 2, the State had to prove beyond a reasonable doubt that (1) Defendant “took 17 and carried away a .38 revolver, belongi ng to another[,]” and (2) “[a]t the time 18 [Defendant] took this property, [D]efendant intended to permanently deprive the 19 owner of it[.]” The jury heard from Sanders that Defendant took Sanders’ .38 revolver 209 and that he did not have Sanders’ permission to do so, thus satisfying the first element. 1 Detective Fabian Picazo of the Otero County Sheriff’s Office testified that when he 2 responded to the call at Sanders’ residence on Novemb er 1, he observed, through a 3 window, Defendant standing with a pistol in his hand, pointed towards the closet area. 4 Sanders’ older daughter testified that at one point that night, she gained control of the 5 gun but that Defendant threatened to hurt her if she did not give it back, so she gave 6 the gun back to Defendant. She also testifie d that when the police were trying to get 7 Defendant to surrender, they instructed hi m to leave the gun, wh ich Defendant refused 8 to do. From all of the evidence adduced at trial, the jury could reasonably infer that 9 Defendant intended to permanently deprive Sanders of her gun atthe time he took it. 10 See State v. Roybal , 1960-NMSC-012, ¶ 6, 66 N.M. 416, 349 P.2d 332 (explaining 11 that in larceny cases, intent “may beinferred by the jury from the facts and 12 circumstances established at the trial”). Thus, there was suffici ent evidence to convict 13 Defendant of Count 2. 14 The State Presented Sufficient Eviden ce to Convict Defendant of Aggravated 15 Assault With a Deadly Weapon 16 {13} The jury in this case was instructed , in accordance with UJI 14-305 NMRA, that 17 in order to convict Defendant of Count 3, the State ha d to prove beyond a reasonable 18 doubt the following: 19 1. [D]efendant rammed . . . Sanders’ vehicle with his vehicle; 2010 2. [D]efendant’s conduct caused . . . Sanders to believe [D]efendant 1 was about to intrude on . . . Sanders’ bodily integrity or personal 2 safety by touching or applying force to . . . Sanders in a rude, 3 insolent or angry manner; 4 3. A reasonable person in the same circumstances as . . . Sanders 5 would have had the same belief; 6 4. [D]efendant used a deadly weapon. [D]efendant used a motor 7 vehicle. A motor vehicle is a deadly weapon only if you find that 8 a motor vehicle, when used as a weapon, could cause death or 9 great[] bodily harm; 10 5. This happened in New Mexico on or about the 1st day of 11 November, 2011. 12 Sanders testified that Defendant used his truck to rear-end her vehicle twice: once as 13 she was still driving up her driveway, and once after she had parked. She also testified 14 that this caused her to fear for her and her daughter’s safety. From this evidence, the 15 jury could reasonably convict Defendant of Count 3. 16 The State Presented Sufficient Evidenceto Convict Defendant of Aggravated 17 Fleeing a Law Enforcement Officer 18 {14} The jury was instructed that in order to convict Defendant of Count 5, the State 19 had to prove beyond a reasonable doubt the following: 20 1. [D]efendant operated a motor vehicle; 21 2. [D]efendant drove willfully and carelessly in a manner that 22 endangered the life of another person; 2311 3. [D]efendant had been given a visual or audible signal to stop by 1 a uniformed law enforcement offi cer in an appropriately marked 2 law enforcement vehicle[;] 3 4. [D]efendant knew that a law enforcement officer had given him 4 a[n] audible or visual signal to stop; 5 5. This happened in New Mexico on or about the 1st day of 6 November, 2011. 7 Deputy Garcia’s testimony supplies suffi cient evidence to support Defendant’s 8 conviction. Deputy Garcia testified that he was in uniform and a fully marked law 9 enforcement vehicle; that he engaged his vehicle’s lights as he approached 10 Defendant’s truck at the back of the church ; that he repeatedlyordered Defendant to 11 get out of Defendant’s truck; that Defendant ignored his orders and proceeded to ram 12 into Deputy Garcia’s vehicle before driving away; and thatDefendant’s conduct 13 caused Deputy Garcia to fear for his life. From this, the jury could reasonably find that 14 Defendant drove “willfully and carelessly in a manner that endangered the life of 15 another person[,]” the only element Defendant challenges as unsupported by 16 substantial evidence. UJI 14-2217 NMRA. Moreover, as our Supreme Court has 17 explained, 18 When a person resists, evades, or obstructs an officer by fleeing without 19 willful and careless driving, that conduct is a mere misdemeanor. See 20 NMSA 1978, § 30-22-1 (1981). Because fleeing is made worse or more 21 serious when the person flees in a manner that endangers the lives of 22 others, the Legislature chose to make the crime a fourth degree felony, 2312 see § 30-22-1.1(B). Thus, the defendant’s conduct gives rise to the 1 imposition of the heightened punishment. 2 State v. Padilla , 2008-NMSC-006, ¶ 14, 143 N.M . 310, 176 P.3d 299 (internal 3 quotation marks and citation omitted). Here, it was the fact that Defendant not only 4 attempted to evade Deputy Garcia by driving away from him but also rammed Deputy 5 Garcia’s vehicle and drove toward Deputy Garcia like “he was going to run [Deputy 6 Garcia] over” that supports Defendant’s conviction for aggravated fleeing. The act of 7 ramming his truck into Deputy Garcia’s vehi cle made Defendant’s act “worse or more 8 serious,” thus warranting his convi ction of a more serious crime. See id. 9 The State Presented Sufficient Evidence toConvict Defendant of Shooting at a 10 Dwelling 11 {15} In pertinent part, the jury was instructedthat in order to convict Defendant of 12 Count 7, the State had to prove beyond a reasonable doubt that Defendant “willfully 13 shot a firearm at a dwelling[.] ” Sanders testified that after Defendant returned to her 14 house from the church, she heard “gunfire going through [the] home.” Kevin Massis, 15 a crime scene investigator with the New Mexi co State Police, tes tified that there was 16 one bullet lodged inside the front door and one that ended up in front of a bedroom 17 located across the house. The jury was also shown diagrams of the house and 18 photographs taken inside the house that s howed the relationship between the front 1913 door—where Defendant shot the gun—and where the bullets landed. From this 1 evidence, the jury could convict Defendant of Count 7. 2 The State Presented Sufficient Evidence to Convict Defendant of Breaking and 3 Entering 4 {16} In pertinent part, the jury was in structed, in accordance with UJI 14-1410 5 NMRA, that in order to convict Defendant of Count 9, the State had to prove beyond 6 a reasonable doubt that (1) Defendant “entered a dwelling without permission”; and 7 (2) “[t]he entry was obtained by the breaking of a bedroom window[.]” Sanders 8 testified that she did not gi ve Defendant keys and the combination to the new locks 9 she installed after Defendant moved out of her house, allowing the jury to conclude 10 that Defendant did not have permission to enter the house. Norman Rhoades, a crime 11 scene investigator with the New Mexico St ate Police, testified that he identified 12 Defendant’s entry point as a bedroom wi ndow, which had a screen that had been 13 forced inward. The State presented to the jury photographs of the bedroom window 14 with the screen pushed in and ripped, as we ll as the crime scene i nvestigator’s diagram 15 showing numerous blood stains around the window and on the bed just inside the 16 window. We conclude that this was suffi cient evidence for the jury to convict 17 Defendant of Count 9. 1814 II. Aggravated Fleeing Jury Instruction 1 {17} Defendant argues that the district c ourt committed fundamental error by giving 2 a jury instruction for aggravated fleeing that omits an essential element of the crime. 3 We disagree. 4 {18} Under NMSA 1978, Section 30-22-1.1(A) (2003), aggravated fleeing a law 5 enforcement officer 6 consists of a person willfully and carelessly driving his vehicle in a 7 manner that endangers the life of another person after being given a 8 visual or audible signal to stop, wh ether by hand, voice, emergency light, 9 flashing light, siren or other signal, by a uniformed law enforcement 10 officer in an appropriately marked law enforcement vehicle in pursuit in 11 accordance with the provisions of th e Law Enforcement Safe Pursuit 12 Act. 13 UJI 14-2217 identifies the following as the esse ntial elements that the state must prove 14 in order to convict a defendant of aggravated fleeing: 15 1. The defendant operated a motor vehicle; 16 2. The defendant drove willfully and carelessly in a manner that 17 endangered the life of another person; 18 3. The defendant had been given a vi sual or audible signal to stop by 19 a uniformed law enforcement offi cer in an appropriately marked 20 law enforcement vehicle; 21 4. The defendant knew that a law enforcement officer had given him 22 an audible or visual signal to stop[.] 2315 Defendant contends that UJI 14-2217—used in this case— “omit[s] the most essential 1 element of the crime of aggravated fleeing—that [the defendant] actually ignored the 2 officer’s signal and did not stop.” According to Defendant, “[t]he jury instruction does 3 not require any finding that the defendant drove in the specified manner after being 4 signaled by the officer.” Defendant’s argument is without merit. 5 {19} Paragraph 3 of UJI 14-2217—specifically the phrase “[t]he defendant had been 6 given a visual or audible signal to stop”—p rovides the necessary language to make 7 clear that the defendant’s operati on of a motor vehicle occurred after the defendant 8 had been signaled by law enforcement to stop. UJI 14-2217 (emphasis added). 9 Paragraph 4 provides further reinforcement and clarification by requiring the jury to 10 find that the defendant “ knewthat a law enforcement officer had given himan audible 11 or visual signal to stop[.]” Id. (emphases added). As De fendant points out, “[t]he 12 statute requires that the [s]tate prove the defendant drove in the proscribed manner 13 after being given a signal by law enforcement.” UJI 14-2217 commensurately requires 14 the jury to find that the state has proven th at the “defendant operated a motor vehicle” 15 in a “willful[] and careless[] manner” and that such operation occurred at a time when 16 the “defendant had been given a . . . signal to stop[,]” i.e., after being signaled. 17 {20} Our ultimate objective in reviewing jury in structions is to “seek to determine 18 whether a reasonable juror would have been confused or misdirected by the 1916 instruction.” State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 1 (internal quotation marks and citation omitte d). We conclude that the aggravated 2 fleeing instruction given in this case include d all of the essential elements contained 3 in Section 30-22-1.1 and would not have beenconfusing or misleading to a reasonable 4 juror. 5 III. Unfair Prejudice Resulting From Certain Testimony 6 {21} Defendant complains that statements ma de by three testifying law enforcement 7 officers—Deputy Garcia, Sergeant Martin ez, and Detective Picazo—suggested that 8 Defendant “had prior domestic violence charges” and had previously been 9 incarcerated, unfairly prejudici ng him and necessitating reversal of his convictions and 10 remand for a new trial. The specific statements Defendant complains of are: (1) 11 Deputy Garcia’s statement th at he could identify Defendant because while he did not 12 know Defendant at the time of the events in question on Novemb er 1, 2011, he had 13 “served subpoenas to [Defendant] at the jail,” thus allowing him to identify Defendant 14 in court; (2) Detective Picazo’s statement that he had “pri or dealings” with Defendant, 15 including when Detective Picazoresponded to a “domestic” call at Sanders’ residence; 16 and (3) Sergeant Martinez’s statement indi cating that she had responded to a call at 17 Sanders’ house “three weeks prior” to the November 1 incident. {22} With respect 18 to the testimony of Detective Picazo and Sergeant Martinez, weunderstand Defendant 1917 to argue that the district court erred by failing to exclude certain evidence under Rule 1 11-403 NMRA, which provides that “[t]he c ourt may exclude relevant evidence if its 2 probative value is substantially outweighe d by a danger of . . . unfair prejudice[.]” 3 Ordinarily, we review a district court’s Rule 11-403 decision for an abuse of 4 discretion. State v. Otto , 2007-NMSC-012, ¶ 14, 141 N.M . 443, 157 P.3d 8. Here, 5 however, we note that defense counsel neith er objected to any of the now-complained6 of statements made by Detective Picazo and Sergeant Martinez nor moved to strike 7 any testimony elicited on cross- examination. Thus, Defendant failed to preserve his 8 claims of error in accordance with Rule 11-103(A) NMRA. We, therefore, decline to 9 further consider Defendant’s Rule 11-403 argument with respect to Detective Picazo’s 10 and Sergeant Martinez’s statements. See State v. Rael-Gallegos , 2013-NMCA-092, 11 ¶ 39, 308 P.3d 1016 (declining to review Rule11-403 claim that was not preserved). 12 {23} With respect to Deputy Garcia’s testimony, we note that the district court, 13 indeed, sustained Defendant’s objection to Deputy Garcia’s te stimony that he had 14 served subpoenas to Defendant in jail and provided a curativ e instruction to the jury. 15 We understand Defendant’s argument that he should be gran ted a new trial as a claim 16 that the district court erred by denying his request for a mistrial, a decision we review 17 for an abuse of discretion. See State v. Caudillo , 2003-NMCA-042, ¶ 12, 133 N.M. 18 468, 64 P.3d 495. When Deputy Garcia testified that hecame to know who Defendant 1918 was and could identify him in court becausehe had “served subpoe nas to [Defendant] 1 at the jail,” defense counsel requested and th e district court immediately held a bench 2 conference during which defense counsel moved for a mistrial. The district court 3 denied the motion, noting that the pr osecutor had not elicited Deputy Garcia’s 4 statement and explaining that “some passing notion that [Defendant] may have spent 5 some time in jail . . . isn’t so prejudicial” as to warrant a mistrial. The district court, 6 however, offered to give a “corrective instruction” to the jury, which defense counsel 7 accepted and the district court immediately gave, explaining that the jury was to 8 disregard Deputy Garcia’s statement that hehad “encountered . . . Defendant in jail” 9 and that the statement “is not to enter into the jury deliberations in any way and should 10 not influence [the] verdict.” 11 {24} We can see no abuse of discretion in the district court’s denial of Defendant’s 12 motion for a mistrial. “An abuse of discretion occurs when the ruling is clearly against 13 the logic and effect of the facts and circum stances of the case. We cannot say the trial 14 court abused its discretion by its ruling unless we can characterize it as clearly 15 untenable or not justified by reason.” Id. (internal quotation marks and citation 16 omitted). Particularly in light of the facts that (1) Deputy Garcia’s explanation of how 17 he came to know who Defendant was came after defense counsel challenged Deputy 18 Garcia’s personal knowledge of Defendant’s identity, (2) the prosecutor did not solicit 1919 the “in jail” statement, and (3) a curativ e instruction was immediately given, we 1 conclude the district court did not abuse its discretion by refusing to grant a mistrial. 2 See id. ¶ 14 (explaining that there is “no need for a mistrial” when “a court promptly 3 sustains an objection and admonishes the jury to disregard the evidence” in a case 4 where there is an unsolicited mention of the defendant’s “revoked license for prior 5 convictions”). 6 IV. Speedy Trial 7 {25} Defendant concedes that hefailed to preserve this issue below and raises it as 8 fundamental error under Rule 12-321(B)(2 ) NMRA (formerly Rule 12-216(B)(2) 9 NMRA). Because of the fact-dependent nature of a speedy trial claim and Defendant’s 10 failure not only to demand a speedy trial but also to invoke a ruling by the district 11 court, we are left in a position where we effectively have nothing to review. See Rojo , 12 1999-NMSC-001, ¶¶ 49-52 (explaining that “an appropriate motion to protect 13 constitutional speedy[]trial ri ghts requires the weighing of factors that are factually 14 based,” that “fact-finding is a function of th e district court,” and concluding that the 15 record failed to establish a basis for c onsidering the defendant’s unpreserved speedy 16 trial challenge (alterations, internal quotation marks, and citations omitted)); State v. 17 Valdez , 1990-NMCA-018, ¶¶ 14-16, 109 N.M. 759, 790 P.2d 1040 (quoting with 18 approval United States v. Canniff , 521 F.2d 565, 573 (2d Cir. 1975), for the 1920 proposition that “[a] complete failure to rais e [a speedy trial claim] in the trial court 1 . . . precludes [an appellate court’s] consider ation of the issue on appeal, for the simple 2 reason that there is nothing to review” and declining to entertain an unpreserved claim 3 of a speedy trial violation); see also State v. Lopez , 2008-NMCA-002, ¶¶ 24-25, 143 4 N.M. 274, 175 P.3d 942 (explaining that “[i]t is well-settled law that in order to 5 preserve a speedy trial argument, [the d]ef endant must properly raise it in the lower 6 court and invoke a ruling” and holding thateven though the defendant filed motions 7 demanding a speedy trial, she failed to preserve her argument because the district 8 court never held a hearing on her demand). 9 {26} Moreover, in order to prevail on a clai m of fundamental error, Defendant must 10 “demonstrate the existence of circumstances that ‘shock th e conscience’ or implicate 11 a fundamental unfairness within the system that would undermine judicial integrity 12 if left unchecked.” Cunningham , 2000-NMSC-009, ¶ 21. Defe ndant has failed to do 13 so, citing no authority and developing no argument as tohow the delay in going to 14 trial constituted “such a striking violation of the constitutional right to a speedy trial 15 that it would be appropriate to consider that issue fo r the first time on appeal.” Rojo , 16 1999-NMSC-001, ¶ 53 (internal quotation marks and citation omitted). We note that 17 the record indicates not only that the St ate diligently prosecuted its case and made 18 every effort to bring Defendant’s case to trial in a timely manner but also that it was 1921 Defendant who requested and was granted five continuanc es. The district court, in 1 fact, repeatedly admonished Defendant for the delays he was causing, expressly telling 2 him that it would not hold the delays agains t the State and that he could not delay 3 going to trial forever. We thus decline to further consider De fendant’s speedy trial 4 argument. See Lopez , 2008-NMCA-002, ¶¶ 24-25. 5 V. Ineffective Assistance of Counsel 6 {27} Defendant argues that he received ineffec tive assistance of counsel in violation 7 of the Sixth Amendment because his trial counsel failed to (1) request a voluntary 8 intoxication jury instruction despite suff icient evidence to warrant one, and (2) 9 investigate the “effect of [Defendant] bei ng shot in the head” and how that may have 10 affected Defendant’s ability to form specific intent. The State concedes that sufficient 11 evidence existed to support a voluntary intoxication instruction but argues that “a 12 diminished capacity instruction cannot bebased on trauma from being shot” because 13 the only specific intent crimes with which Defendant was charged—aggravated 14 burglary and larceny—occurred before Defendant was shot. 15 {28} “Habeas corpus proceedings are the preferred avenue for adjudicating 16 ineffective assistance of counsel claims, becau se the record before the trial court may 17 not adequately document the sort of eviden ce essential to a determination of trial 18 counsel’s effectiveness.” State v. Grogan , 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 1922 P.3d 494 (alteration, internal quotation marks, and citation omitted). “When an 1 ineffective assistance claim is first raised on direct appeal, we ev aluate the facts that 2 are part of the record.” State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 3 61. “If facts necessary to a fu ll determination are not part of the record, an ineffective 4 assistance claim is more properly brought through a habeas corpus petition, although 5 an appellate court may remand a case for an evidentiary hearing if the defendant 6 makes a prima facie case of ineffective assistance.” Id. “To state a claim for 7 ineffective assistance of counsel, a defe ndant must establish that (1) counsel’s 8 performance was deficient, and (2) such deficiency resu lted in prejudice against the 9 defendant.” Garcia , 2011-NMSC-003, ¶ 33 (emphasis added). 10 {29} Assuming without deciding that trial c ounsel’s failure to request a voluntary 11 intoxication instruction constituted deficient performance, we conclude that Defendant 12 has failed to meet his burden because he poi nts to nothing in the record establishing 13 that “as a result of the deficient perform ance, there was a reas onable probability that 14 the result of the trial woul d have been different.” State v. Dylan J. , 2009-NMCA-027, 15 ¶ 38, 145 N.M. 719, 204 P.3d 44 (omission, in ternal quotation marks, and citation 16 omitted); see State v. Trujillo , 2002-NMSC-005, ¶ 38, 131 N.M. 709, 42 P.3d 814 17 (“An error by counsel, even if professi onally unreasonable, does not warrant setting 18 aside the judgment of a crimin al proceeding if the error had no effect on the judgment. 1923 Accordingly, [a] defendant must still affirmatively prove prejudice.” (alteration, 1 internal quotation marks, and citations omitted)). Defendant ha s failed to show how 2 trial counsel’s failure to request a voluntary intoxication instruction prejudiced him. 3 In fact, he offers no explanation whatsoeverof how that claimed deficiency prejudiced 4 his defense. Defendant’s only statement re garding prejudice is that trial counsel’s 5 “failure to investigate, especially after having requested time to do so, the result of 6 having been shot in the head . . . was prejudicial to [Defe ndant’s] defense in that the 7 jury never even learned of the effect of be ing shot in the head on one’s ability to form 8 specific intent.” However, Defendant’s contention is purely speculative, and he points 9 to nothing in the record indicating whatadditional information would have been 10 provided by an expert testifying “regardi ng the psychological effect on [Defendant] 11 of having been shot by [Sergeant] Martin ez” or demonstrated that such additional 12 information had a reasonable probability of changing the result of his trial. Moreover, 13 we agree with the State thatthe only specific intent crimes with which Defendant was 14 charged were aggravated burglary and la rceny, both of which occurred prior to 15 Defendant being shot, meaning that there was neither deficient performance nor 16 prejudice suffered based on trial counsel’s decision not to further investigate or 17 present a diminished-capacity defense regarding the effectof Defendant being shot. 1824 {30} We conclude that Defendant has failed to meet his burden of establishing a 1 prima facie case of ineffectiv e assistance and, therefore, decline Defendant’s request 2 that we remand for an evidentiary hearing. Cf. State v. Paredez , 2004-NMSC-036, ¶ 1, 3 136 N.M. 533, 101 P.3d 799 (concluding that remand to the district court for an 4 evidentiary hearing was proper where a prim a facie case of ine ffective assistance of 5 counsel was established by the appellate record). We note, however, that “this 6 decision does not preclude [a d]efendant from pursuing habeas corpus proceedings on 7 this issue should he be able to garner evidence to support his claims.” State v. Bernal , 8 2006-NMSC-050, ¶ 36, 140 N.M. 644, 146 P.3d 289. 9 CONCLUSION 10 {31} For the foregoing reasons, we affirm Defendant’s convictions. 11 {32} IT IS SO ORDERED. 12

___________________________ ______ 13 J. MILES HANISEE, Judge 1425 WE CONCUR: 1

_________________________________ 2 LINDA M. VANZI, Chief Judge 3

_________________________________ 4 JONATHAN B. SUTIN, Judge 5