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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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

v. NO. 33,867 4 CANDELARIO PEDROZA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Angie K. Schneider, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Elizabeth Ashton, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Karl Erich Martell, Assi stant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 WECHSLER, Judge. 192 {1} Defendant Candelario Pedroza appeals his convictions fo r possession of a 1 controlled substance and po ssession of drug paraphernalia, challenging the sufficiency 2 of the evidence offered at trial and asserti ng that he was denied effective assistance 3 of counsel. In particular, with regard tothe sufficiency of the evidence, Defendant 4 asserts that the State did not establish th at “he had knowledge of the contraband” that 5 was found concealed within an irrigation sprinkler head on the floor of a borrowed 6 truck that Defendant had been driving. Inaddition, Defendant asserts that he was 7 denied effective assistance of counsel. We affirm. 8 SUFFICIENCY OF THE EVIDENCE 9 {2} With regard to the suffici ency of the trial evidence, this Court reviews to 10 determine “whether substantial evidence of either a direct or circumstantial nature 11 exists to support a verdict of guilt beyond a reasonable doubt with respect to every 12 element essential to a conviction.” State v. Sutphin , 1988-NMSC-031, ¶ 21, 107 N.M. 13 126, 753 P.2d 1314. “A reviewing court must view the evidence in the light most 14 favorable to the state, resolving all conf licts therein and indulging all permissible 15 inferences therefrom in favor of the verdict.” Id. “This [C]ourt does not weigh the 16 evidence and may not substitute its judgment for that of the fact finder so long as there 17 is sufficient evidence to support the verdict.” Id. Further, when assessing the 18 sufficiency of the evidence to support a jury verdict, this Court analyzes the evidence 193 presented in the light of the instructions given to the jury defining the offenses 1 charged. See State v. Smith , 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883 2 (noting that “[j]ury instructions becomethe law of the case against which the 3 sufficiency of the evidence is to be measured”). Of relevance to Defendant’s 4 contention on appeal, the jury at his trial wa s instructed with regard to the doctrine of 5 constructive possession. See UJI 14-130 NMRA (defining “possession”). The jury was 6 informed that: 7 A person is in possession of methamphetamine or drug 8 paraphernalia when he knows it is on his person or in his presence, and 9 he exercises control over it. 10 Even if the methamphetamine or drug paraphernalia is not in his 11 physical presence, he is in possession if he knows where it is, and he 12 exercises control over it. 13 Two or more people can have possession of a substance at the 14 same time. 15 A person’s presence in the vicin ity of the substance or his 16 knowledge of the existence or the lo cation of the substance, is not, by 17 itself, possession. 18 {3} The facts as presented at trial are not in dispute. Officer Rodney Scharmack of 19 the Alamogordo Police Department receive d a tip from a reliable confidential 20 informant that a probationer possessed methamphetamine and th at the probationer 21 would be at his apartment with an Hispanic male driving a Ford F-150 pick-up truck. 22 As Officer Scharmack approached the ap artment with the probationer’s probation 234 officers, he observed an Hispanic male standing in the open door of a silver F-150 1 pick-up truck. The man, Defendant, clos ed the door and began walking to the 2 probationer’s apartment. Inside the apartment, the probation officers conducted a 3 probation search. Officer Scharmack asked Defendant what he was doing standing in 4 the door of the truck, and Defendant deniedthat he was the person standing at the 5 truck. With Defendant’s permission, O fficer Scharmack patte d Defendant down and 6 found gun cartridges. Officer Scharm ack then detained Defendant. 7 {4} During the pat-down, Defendant informed Officer Scharmack that the Ford 8 F-150 pick-up truck was not his truck. O fficer Scharmack observed a set of keys 9 attached to Defendant’s belt loop, but Defendant denied that they belonged to the 10 truck that was outside. Defendant gave Officer Scharmack permission to see if the 11 keys worked on the truck, and Officer Sharmack was able to unlock the door. 12 Defendant then told Officer Scharmack th at the truck belonged to a friend who lived 13 in Ruidoso, New Mexico. Defendant did notknow his name or how to contact him. 14 Defendant ultimately told Officer Scharmack that he was the person standing next to 15 the truck earlier. 16 {5} A drug sniffing dog requested by the probation officers did not locate any drugs 17 in the apartment but alerted to the truc k. Officer Scharmack obtained a warrant to 18 search the truck. On the floorboard next to the center console, beneath a shirt, he 195 found a sprinkler head, a loaded gun, and si x rounds of the same cartridges he found 1 in Defendant’s pocket in the apartment. Healso found thirty-three rounds of the same 2 cartridges in a box in the driver’s side doorpocket. Inside the sprinkler head, there 3 was a bag of methamphetami ne and drug paraphernalia. 4 {6} On appeal, Defendant cites State v. Garciafor the proposition that possession 5 cannot be based upon mere proximity and that an appellate court “must be able to 6 articulate a reasonable analysis that the fact-finder might have used to determine 7 knowledge and control.” 2005- NMSC-017, ¶ 13, 138 N.M. 1, 116 P.3d 72 (alteration, 8 internal quotation marks, and citation omitted). In this case, however, Defendant’s 9 behavior prior to the searchof the truck provides ample basis for the jury to have 10 determined he had knowledge of and control over the contraband. 11 {7} The evidence at trial was that, until confronted with the fact that a key in his 12 possession fit the lock of the truck in which the contraband was found, Defendant 13 consistently, repeatedly, and dishonestly denied any connection with that truck. Such 14 evidence would suggest to a reasonable person that Defendant knew something that 15 made him want to disassociate himself from that truck, and a jury may reasonably 16 infer from such conduct that Defendant was aware of the contraband in the truck. See 17 State v. Martinez , 2002-NMCA-043, ¶ 17, 132 N.M. 101, 45 P.3d 41 (noting that a 18 jury may interpret a defendant’s dishonesty with law enforcement officers “as 196 evincing a consciousness of guilt”); see also State v. Faubion , 1998-NMCA-095, ¶ 13, 1 125 N.M. 670, 964 P.2d 834 (describing lies to the police as evidence of 2 consciousness of guilt). 3 {8} Defendant also asserts that the State failed to establish his exclusive control 4 over the truck, citing to State v. Maes , 2007-NMCA-089, ¶¶ 14-22, 142 N.M. 276, 164 5 P.3d 975. Defendant does not base this a ssertion on there having been anyone else 6 present who had any actual access to the interior of the truck or any actual control 7 over the truck; instead, he merely point s out that the State offered no evidence 8 regarding ownership of the truck. And, as noted above, there was evidence that 9 Defendant at one point claimed that th e truck was borrowed from an unknown person. 10 However, the State did offer evidence thatthe truck was locked and that Defendant 11 had the key. The matching gun cartridges found on the floorboard and driver’s side 12 door pocket of the truck provide additi onal evidence of control over the truck. 13 {9} To the extent that exclusive control of the truck is at issue in this case, our 14 appellate opinions hold that “the mere presence of the contraband is not enough to 15 support an inference of constructive possessi on” in the absence of exclusive control 16 of the area where drugs are found. State v. Phillips , 2000-NMCA-028, ¶ 8, 128 N.M. 17 777, 999 P.2d 421. Instead, “[a]dditional circ umstances or incriminating statements 18 are required” and “[t]he accused’s own conduct may afford sufficient additional 197 circumstances for constructive possession.” Id. ; see also State v. Morales , 2002- 1 NMCA-052, ¶ 28, 132 N.M. 146, 45 P.3d 406 (noting that “[w]hen an accused is not 2 in exclusive possession of the place in which the illegal substance is found, the [s]tate 3 is required to prove that the accused kne w the substance was there and that he 4 exercised control over it”), overruled on other grounds by State v. Tollardo , 2012- 5 NMSC-008, ¶ 37 n.6, 275 P.3d 110. 6 {10} As discussed above, the State offere d ample evidence regarding Defendant’s 7 behavior leading up to the discovery of c ontraband in the truck. Given the evidence 8 presented, the jury was entitled to treat Defendant’s contradictory statements 9 regarding his connection to and control over the truck as incriminating statements that 10 sufficiently established his further know ledge of and control over the contents 11 eventually found in the truck, including th e sprinkler head containing the contraband 12 and drug paraphernalia. 13 {11} In sum, Defendant’s convicti ons are supported by evidence that 14 methamphetamine and a glass pipe were found ina truck that he had been driving. The 15 evidence supported the jury’s finding that Defendant had knowledgeand control over 16 the truck’s illegal contents. Defendant, who had the key to that truck, had sole access 17 to the interior of the truck and possesse d matching gun cartridges to those found inside 188 the truck. Defendant’s own conduct prior to law enforcement’s discovery of the 1 contraband further supported the jury’s finding. 2 INEFFECTIVE ASSISTANCE OF COUNSEL 3 {12} Defendant also asserts a claim of ineff ective assistance of counsel. On appeal, 4 Defendant bears the burden of establishing a prima facie case of in effective assistance 5 of counsel. State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M . 657, 54 P.3d 61. To do 6 so, Defendant must demonstrate that: (1) counsel’s performance fell below that of a 7 reasonably competent attorney; (2) no plausible, rational strategy or tactic explains 8 counsel’s conduct; and (3) counsel ’s apparent failings were prejudicial to the defense. 9 See State v. Herrera , 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22. 10 {13} Defendant bases his claim of ineffec tive assistance of counsel on the limited 11 contact between himself and his attorney. However, Defendant fails to demonstrate 12 how more contact would havestrengthened his defense orled to a different result. 13 This is a fatal deficiency. See State v. Martinez , 2007-NMCA-160, ¶¶ 20, 23, 143 14 N.M. 96, 173 P.3d 18 (rejecting a claim of ine ffective assistance of counsel where the 15 defendant provided no specifics as to how his defense would havebeen strengthened 16 by more preparation). We therefore reject Defendant’s claim of ineffective assistance 17 of counsel, without prejudice or preclusive e ffect as to any habeas corpus proceedings 18 Defendant may bring in the future. See generally State v. Gonzales , 2007-NMSC-059, 199 ¶ 16, 143 N.M. 25, 172 P.3d 162 (“While [the d]efendant has failed to establish a 1 prima facie case of ineffective assistance of counsel, [the d]efendant can still pursue 2 habeas proceedings on this issue.”). 3 CONCLUSION 4 {14} We affirm Defendant’s convictions. 5 {15} IT IS SO ORDERED. 6

____________ ____________________ 7 JAMES J. WECHSLER, Judge 8

WE CONCUR: 9

________________________________ 10 LINDA M. VANZI, Judge 11

________________________________ 12 TIMOTHY L. GARCIA, Judge 13