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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 fr om 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. 32,402 4 JOE SILVA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY 7 Grant L. Foutz, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Acting Chief Public Defender 12 Nina Lalevic, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 SUTIN, Judge. 172 Defendant Joe Silva appeals from the j udgment and order partially suspending 1 his sentence. [RP 215] Defendant was convicted, after a jurytrial, of trafficking (by 2 possession with intent to distribute) and possession of a firearm by a felon. [Id.] In 3 a calendar notice, this Court proposed to affirm Defendant’s convictions. [CN 1] 4 Defendant has filed a memorandum in oppos ition that we have duly considered. 5 [MIO] Unpersuaded, however, we affirm Defendant’s convictions. 6 DISCUSSION 7 Issue 1: Sufficiency of the Evidence 8 Defendant contends that the evidence was not sufficient to support a guilty 9 verdict of trafficking controlled substances with intent to distribute, as the 10 methamphetamine amounted to 0.48 grams, and the State did not meet the burden of 11 proof to establish intent to transfer. [DS 7] In his memorandum in opposition, 12 Defendant does not provide us with facts or authorities that we did not consider in 13 proposing summary affirmance on this issue in the calendar notice. [MIO 1-6] 14 Moreover, we note thatDefendant relies on State v. Franklin , 78 N.M. 127, 129, 428 15 P.2d 982, 984 (1967), and State v. Boyer , 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. 16 App. 1985), in continuing to maintain thatthe evidence presented at trial does not 17 support his convictions. [MIO 6] We disagree and affirm. 183 As we discussed in the calendar notice, “[s]ubstantial evidence review requires 1 analysis of whether direct or circumstan tial substantial evidence exists and supports 2 a verdict of guilt beyond a reasonable doubt w ith respect to every element essential 3 for conviction. We determine whether a rational fact[-]finder could have found that 4 each element of the crime was established beyond a reasonable doubt.” State v. Kent , 5 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted). “In reviewing 6 the sufficiency of the eviden ce, we must view the eviden ce in the light most favorable 7 to the guilty verdict, indulging all reasonabl e inferences and reso lving all conflicts in 8 the evidence in favor of the verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 9 128 N.M. 711, 998 P.2d 176. 10 The jury was instructed that in order to convict Defendant of trafficking a 11 controlled substance by possession with intent to distribute, the State must prove each 12 of the following elements of the crime beyond a reasonable doubt: (1) Defendant had 13 methamphetamine in his possession; (2) Defendant knew it was methamphetamine; 14 (3) Defendant intended to transfer it to another; and (4) this happened in New Mexico 15 on or about December 21, 2010. [RP 159] Th e jury was further instructed that a 16 person is in possession of methamphetaminewhen he knows it is on his person or in 17 his possession and he exercises control over it; that even if the substance is not in his 18 physical presence, he is in possession if heknows where it is and he exercises control 194 over it; that two or more pe ople can have possession of a substance at the same time; 1 and a person’s presence in the vicinity of the substance or his knowledge of the 2 existence or the location of the substan ce, is not, by itself, possession. [RP 160] 3 Finally, the jury was instructed that th e State must prove that Defendant acted 4 intentionally when he committed trafficki ng a controlled substance with intent to 5 distribute. [RP 164] 6 Regarding the intent-to-distribute element of the charge, the State presented one 7 of the investigating officers, Officer Sal azar, who testified that the officers found a 8 clear plastic baggie containing six other individually wrapped smaller baggies of 9 methamphetamine in a truck registered to Defendant’s moth er and was listed on 10 Defendant’s contact sheet for Probation and Parole as his “personal vehicle.” [RP 126 11 (CD 2:58:02 PM); DS 5-6] The State pres ented evidence from wh ich the jury could 12 reasonably infer that Defendant drove the truck and that he had placed the drugs and 13 the firearm in the truck because the keys to the truck were f ound on Defendant’s bed 14 and Defendant’s mother initially told th e officers that Defendant was probably at 15 home because the truck was there. [RP 143 (CD 10:53:50 AM)] Officer Salazar 16 testified that he took photos of the baggi es and weighed them. [RP 126 (CD 2:59:26 17 PM)] The photos were admitted into eviden ce. [RP 126 (CD 3:01:15 PM)] In 18 addition, the officer testified that each of the smaller baggies had dollar signs on it. 195 [RP 126 (CD 3:01:20 PM)] The officer also testified that, based on his narcotics 1 training and experience, the methamphetaminewas to be sold, and it was not only for 2 personal use. [RP 127 (CD 3:07: 44 PM)] Further, the offi cer testified that, depending 3 on the user, each baggie could have “a lot of hits to it[.]” [RP 128 (CD 3:14:52 - 4 3:15:56 PM)] The laboratory witness c onfirmed that the baggies contained 5 methamphetamine. [RP 140 (CD 10:32:25 AM - 10:32:30 AM)] 6 While Defendant presented witnesses w ho testified that Defendant’s mother 7 actually owned the truck, and that other persons may have driven the truck and placed 8 the drugs there, the jury rejected Defendant ’s version of the events, which it is entitled 9 to do. See State v. Mora , 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 (“The 10 reviewing court does not weigh the evidence or substitute its judgment for that of the 11 fact[-]finder as long as there is suffi cient evidence to support the verdict.”), overruled 12 on other grounds by Kersey v. Hatch , 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683; 13 see also State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M . 438, 971 P.2d 829 (“Contrary 14 evidence supporting acquittal does not provide a basis for reversal because the jury 15 is free to reject Defendant’s version of the facts.”). 16 We hold that substantial evidence supports Defendant’s conviction for 17 possession of a controlled substan ce with intent to distribute. Accordingly, we affirm. 186 Issue 2: Ineffective Assistance of Counsel 1 Defendant contends that his counselprovided ineffective assistance by not 2 requesting the lesser-included jury instruc tion of possession of a controlled substance. 3 [DS 7] In his memorandum, Defendant has not provided facts or authorities that we 4 did not consider in proposing to affirm on th is issue on direct appeal in the calendar 5 notice. [MIO 6-9] We remain persuaded, therefore, that affirmance on direct appeal 6 is the appropriate and correct disposition. 7 As we discussed in the calendar notice, there is a two-fold test for proving 8 ineffective assistance of counsel; the de fendant must show (1) that counsel’s 9 performance fell below that of a reasonably competent attorney and (2) that defendant 10 was prejudiced by the deficient performance. See State v. Hester , 1999-NMSC-020, 11 ¶ 9, 127 N.M. 218, 979 P.2d 729. The burden of proof is on the defendant to prove 12 both prongs. Id. Counsel is presumed competent. State v. Jacobs , 2000-NMSC-026, 13 ¶ 48, 129 N.M. 448, 10 P.3d 127. 14 In this case, the tape log indicates th at the prosecutor and defense counsel had 15 initially prepared to instruct the jury on the lesser-included o ffense of possession of 16 a controlled substance. [RP 131 (CD 3:47: 28 PM -3:48:41 PM)] The district court 17 agreed that the evidence would support a lesser-included offense instruction should 18 Defendant choose to have one given. [Id.; see also RP 133-34 (CD 9:06:49 AM - 197 9:07:53 AM); RP 136 (CD 9:20:35 AM)] Immediately prior to trial, however, 1 defense counsel informed the district c ourt and the prosecutor that defense counsel 2 and Defendant would choose whether they wanted the “step-down” instruction after 3 they discussed the matter. [I d.] The next morning, when asked by the district court, 4 defense counsel reported that “after muchdiscussion” Defendant had decided not to 5 take the lesser-included offe nse instruction. [RP 136 (C D 10:15:09 AM)] Thereafter, 6 Defendant and the State withdrew their te ndered instructions on the lesser-included 7 possession charge. [RP 179, 180, 182-83, 184] 8 We deny Defendant relief on direct appeal. First, defense counsel and 9 Defendant’s discussion regarding the pros and cons of requesti ng the lesser-included 10 jury instruction is not a matter of record. See State v. Roybal , 2002-NMSC-027, ¶ 19, 11 132 N.M. 657, 54 P.3d 61 (“When an ineffectiv e assistance claim is first raised on 12 direct appeal, [the appellate courts] evaluatethe facts that are part of the record. If 13 facts necessary to a full determination are not part of the record, an ineffective 14 assistance claim is more properly brought through a habeas corpus petition, although 15 an appellate court may remand a case for an evidentiary hearing if the defendant 16 makes a prima facie case of ineffective assi stance.”). Second, it appears that defense 17 counsel and Defendant decided not to reque st the lesser-included instruction as a 18 matter of trial strategy. State v. Baca , 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 198 P.2d 776 (stating that “a prima facie case is not made when a plausible, rational 1 strategy or tactic can expl ain the conduct of defense counsel” (internal quotation 2 marks and citation omitted)). Apparently, Defendant hoped to convince the district 3 court and the jury that the State did not prove the elements of the trafficking charge 4 beyond a reasonable doubt and that the districtcourt would grant a directed verdict or 5 that the jury would acquit Defendant on the greater charge. In this regard, Defendant 6 twice moved for a directed verdict, asserti ng that the State had not proved all of the 7 elements of either the trafficking or th e firearm offense, because the State did not 8 demonstrate that Defendant was present whenthe drugs and firearm were found in the 9 truck; the truck, the drugs, and the fi rearm were not, Defe ndant contended, in 10 Defendant’s possession; and Defendant wa s not trafficking because the amount of 11 drugs found only indicated personal use, not th e intent to transfer or sell. [RP 143 12 (CD 10:52:53 AM); RP 148 (CD 11:31:21 AM -11:31:51 AM)] 13 Specifically, in Baca , our Supreme Court held that a defendant failed to 14 demonstrate ineffective assistance of couns el when a reasonable attorney may have 15 concluded, as a matter of strategy, not to request a lesser-included offense instruction. 16 1997-NMSC-059, ¶ 30. Since, on direct appeal, we will not second-guess the trial 17 strategy and tactics of defense counsel, it appears that Defendant must pursue the 18 issue, if at all, in a collateral, post-conviction habeas corpus proceeding. See State v. 199 Martinez , 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his 1 Court has expressed its preference for ha beas corpus proceedings over remand when 2 the record on appeal does not establish a prima facie case of ineffective assistance of 3 counsel”); see also Baca , 1997-NMSC-059, ¶ 25 (“A recordon appeal that provides 4 a basis for remanding to the trial court fo r an evidentiary hearing on ineffective 5 assistance of counsel is rare. Ordinarily , such claims are heard on petition for writ of 6 habeas corpus[.]”). 7 Accordingly, we affirm this issue on direct appeal. 8 Issue 3: Whether the District Court Erredin Not Sua Sponte Instructing the 9 Jury on the Lesser-Included Offense 10 In his memorandum, Defendant continues to argue that the district court 11 committed reversible error by not sua sponte instructing the jury on the lesser12 included offense of possession of contro lled substances, because the evidence 13 supported the instruction. [DS 8; MIO 9-11] As such, Defendant points out that the 14 presence of the six small baggies in the truck supports the le sser-included possession 15 instruction, because the jury could reasonably infer that Defendant purchased the six 16 small baggies of methamphetamine for his personal use, rather than intended to sell 17 them to others. [MIO 8] Relying on Franklinand Boyer , Defendant contends that 18 “[k]nowing the significant sentencing differences between trafficking and possession, 19 trial counsel could not have been making a strategic decision in purposely choosing 2010 not to accept the lesser[-]included offense instruction.” [MIO 8] We are not 1 persuaded. 2 As we discussed in Issue 2, defense counsel and Defendant deliberately chose, 3 as a matter of defense tactics, not to take the lesser-include d offense instruction. [RP 4 136 (CD 10:15:09 AM); RP 179, 180, 182-83, 184] Moreover, as discussed earlier, 5 the district court and the prosecutor were otherwise prepared to instruct the jury on the 6 lesser-included offense. Under the circumstances, it is not for the district court to 7 interfere with Defendant’s and defense counsel’s specifi cally chosen trial strategy 8 decision to require the State to prove and the jury to convict Defendant of the 9 trafficking charge or acquit him altogether on Count 1. As we more fully discussed 10 in Issue 2, the record proper indicates that, after much discussion, defense counsel and 11 Defendant decided to use this strategy. See Baca , 1997-NMSC-059, ¶ 25 (finding no 12 ineffective assistance of counsel in defe nse counsel’s failure to request a lesser13 included offense instruction and such failure could have been made for reasonable, 14 strategic reasons). Moreover, as previ ously discussed, Defendant twice moved for 15 a directed verdict, asserting that the State had not proved all of the elements of either 16 the trafficking or the firearm offenses, because the State did not demonstrate that 17 Defendant was present when the drugs and fi rearm were found in the truck; the truck, 18 the drugs, and the firearm were not, according to Defendant, in Defendant’s 1911 possession; and Defendant wa s not trafficking because the amount of drugs found 1 only indicated personal use rather than in tent to transfer or sell. [RP 143 (CD 2 10:52:53 AM); RP 148 (CD 11:31:21 AM-11:31:51 AM)] The jury rejected these 3 defenses, convicting Defendant of trafficking with intent to distribute, which we have 4 determined was supported by substantial evidence presented at trial. 5 We affirm the district court on this issue. 6 Issue 4: Defendant’s Use of Methamphetamine Prior to Trial 7 In his memorandum, Defendant continues to contend that the district court erred 8 in allowing the jury trial to start, knowi ng that Defendant had used methamphetamine 9 at least forty-eight hours prior to trial. [DS 8; MIO 11-12] We remain persuaded that 10 the district court did not err in proceeding with trial in this case. 11 “The failure to observe procedures ade quate to protect a defendant’s right not 12 to be tried or convicted while incompeten t to stand trial deprives him of his due 13 process right to a fair trial.” State v. Flores , 2005-NMCA-135, ¶ 15, 138 N.M. 636, 14 124 P.3d 1175 (alteration, intern al quotation marks, and c itation omitted). We review 15 questions of constitutional law and cons titutional rights, such as due process 16 protections, de novo. State v. DeGraff , 2006-NMSC-011, ¶ 6, 139 N.M. 211, 131 17 P.3d 61. 1812 The record proper indicates that when defense counsel expressed concern about 1 Defendant’s agitated behavior on the morni ng of trial, the district court allowed 2 defense counsel to question Defendant about his competen cy to proceed. [RP 98 (CD 3 9:19:09 AM)] Defense counsel asked Defe ndant if he had used drugs recently, to 4 which Defendant apparently responded: “Yes, but I am sober right now, used meth 2 5 days ago, smoked it.” [RP 98 (CD 9:19: 55 AM - 9:20:02 AM)] Defense counsel 6 further asked how long the effects of methamphetamine lasts, and Defendant 7 apparently said: “About 13 hours, I usedon Sunday.” [RP 98 (CD 9:20:27 - 9:20:37 8 AM)] Defense counsel further questioned Defendant about his awareness of the role 9 of counsel, whether he knew w hy he was in court, whether he knew about the charges 10 and his potential exposure if convicted, as well as Defendant’s awareness of his 11 decision to reject a plea offer. [RP 98 (CD 9:20:49 AM - 9: 22:05 AM)] Defense 12 counsel then asked Defendant: “So you are completely sober and wish to proceed[?]” 13 [RP 98 (CD 9:22:11 AM)] Defendant res ponded, “Yes[.]” [RP 98 (CD 9:22:20 AM)] 14 The district court then asked Defendant, “Are you ready to go fo rward?” [RP 98 (CD 15 9:22:21 AM)] Defendant rep lied, “Yes sir[.]” [RP 98 (CD 9:22:27 AM)] After a 16 brief recess, the district court, the pros ecutor, and defense counsel proceeded to voir 17 dire the jury. [RP 98, 100] 1813 We hold that the district court observed procedures adequate to protect 1 Defendant’s right not to be tried or convicted while incompetent to stand trial. 2 Moreover, after asking Defendant ques tions designed to probe Defendant’s 3 competency, defense counsel did not further object to proceeding to trial. As such, 4 both the district court and defense counsel were satisfied with Defendant’s behavior 5 and his responses to the questions, indicating that Defendant was competent to 6 proceed to trial. Under the circumstances , we hold that Defendant was not deprived 7 of his due process right to a fair trial due to his incompetency. Therefore, the district 8 court did not err in proceeding with trial. 9 We affirm the district court on this issue. 10 CONCLUSION 11 For the foregoing reasons, we affirm Defendant’s convictions. 12 IT IS SO ORDERED. 13

__________________________________ 14 JONATHAN B. SUTIN, Judge 15

WE CONCUR: 16

_______________________________ 17 TIMOTHY L. GARCIA, Judge 1814 _______________________________ 1 M. MONICA ZAMORA, Judge 2