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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 28,165 9 NATHAN TAYLER, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 12 John M. Paternoster, District Judge 13 Gary K. King, Attorney General 14 Andrew S. Montgomery, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Carlos Ruiz de la Torre, A ssistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21 MEMORANDUM OPINION 22 WECHSLER, Judge. 232 Defendant Nathan Tayler appeals hi s conviction for second degree murder. 1 Defendant raises seven issues on appeal: (1) whether the district court erred in 2 admitting evidence of Defendant’s prior bad act s, (2) whether the district court erred 3 in ruling that Defendant opened the door totestimony about his invocation of the right 4 to silence, (3) whether the district court erred in excluding a toxicology report on the 5 victim, (4) whether the district court erred in not dismissing his first degree murder 6 charge as a sanction for police misconduct, (5) whether there wa s sufficient evidence 7 to sustain his conviction, (6) whether the district court erred in denying Defendant’s 8 proffered jury instructions, and (7) whether Defendant’s trial counsel provided him 9 with ineffective assistance. We affi rm the decision of the district court. 10 BACKGROUND 11 On December 9, 2006, Defendant was at home drinking beer with his neighbor, 12 Rick Decker. Between 10:30 and 11:00 pm, Defendant’s girlfriend, Lynette 13 Wesselhoeft (the victim), arrived and joined them. About an hour after the victim 14 arrived, Defendant and the victim began arguing, and th e victim hit Defendant over 15 the head with a pair of spurs. Defendant told Decker that he was mad at the victim 16 because she had a new boyfriend. 17 Defendant and the victim continued argui ng while Decker attempted to separate 18 the two. Eventually, the vi ctim agreed to leave and fo llowed Decker outside. Decker 193 left Defendant’s property and went home toperform farm chores. About forty-five 1 minutes later, Decker noticed that the vi ctim’s car was still at Defendant’s house with 2 its headlights on. Decker drove back to Defendant’s house, fearing that there was a 3 problem. 4 Decker arrived at Defendant’s house and found the victim’s car running with 5 the door open and lights on. The victim came out of Defendant’s house and hurried 6 toward her car. Defendant followed her out of the house and pointed a gun at Decker 7 and the victim. The victim turned as if to go after Defendant. Defendant pushed the 8 victim to the ground onto some machinery. Decker yelled for De fendant to drop the 9 gun and tried to grab Defendant’s waist, but Decker slipped and fell to the ground. 10 Decker saw Defendant kneel over the vic tim and heard a gunshot. Defendant then 11 told Decker that he had shot the victim. 12 Defendant called 911 and told the dispatcher that he had shot the victim in the 13 neck and killed her. When the officer s arrived at Defendant’s home, Defendant 14 directed them to the victim’s body and told th em he had shot her. Defendant also told 15 the officers where the murder weapon was located. 16 Defendant was arrested and charged with an open c ount of first degree murder 17 in violation of NMSA 1978, Section 30-2-1( A) (1994) with an enhancement for using 18 a firearm in the commission of the offens e, pursuant to NMSA 1978, Section 31-18-16 194 (1993). The jury f ound Defendant guilty of second degree murder in violation of 1 Section 30-2-1(B) and found that Defendant did use a firearm in committing the 2 offense. 3 EVIDENCE OF DEFENDANT’S PRIOR BAD ACTS 4 Defendant makes several arguments about the district court’s decision to 5 conditionally admit evidence of Defendant’s prior bad acts in the event that Defendant 6 chose to testify. The prior bad acts in que stion were an incident in which Defendant 7 shot out the victim’s bathroom window, another in which he knocked the victim 8 unconscious during a fight, and another in which he attempted topush the victim out 9 of a moving vehicle. The district court ruled that evidence of these acts would be 10 admissible if Defendant’s testimony put into issue the question of intent or lack of 11 mistake. 12 Defendant first argues the evidence of prior bad acts should either have been 13 admitted or excluded in whole, regardless of Defendant’s d ecision to testify, and the 14 district court’s decision to admit the ev idence conditionally had a chilling effect on 15 Defendant’s decision to testify. Second, Defendant argues the evidence should have 16 been excluded because the evid ence would necessarily be inthe form of inadmissible 17 hearsay. Third, Defendant argues that the district court erred by not properly applying 18 the standard for relevance under Rule 11-403 NMRA. Finally, Defendant argues he 195 was not provided with adequate notice thatthe evidence of prior bad acts would be 1 admitted. We address each of these arguments in turn. 2 Decision to Conditionally Admi t Evidence if Defendant Testified 3 We review the admission of evidence for abuse of discretion. State v. Flores , 4 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. “An abus e of discretion occurs 5 when the ruling is clearly against the logi c and effect of the facts and circumstances 6 of the case.” Id. (internal quotation marks and citation omitted). “We cannot say the 7 trial court abused its disc retion by its ruling unless we can characterize it as clearly 8 untenable or not justified by reason.” Id. (internal quotation marks and citation 9 omitted). Evidence of a defendant’s prior bad acts is not admissible if it is used to 10 show that the defendant has a propens ity for wrongful action. Rule 11-404(A) 11 NMRA. Such evidence can be admitted fo r other purposes, including intent and 12 absence of mistake. Rule 11-404(B). Suchevidence would still need to be relevant 13 under Rule 11-401 NMRA and could still be excluded under Rule 11-403 “if its 14 probative value is substantially outwei ghed by the danger of unfair prejudice, 15 confusion of the issues or misleading the jury, or by considerations of undue delay, 16 waste of time or needless presen tation of cumulative evidence.” 17 In this case, the district court ruled th at some evidence of Defendant’s prior bad 18 acts was admissible, provided that Defendant ’s testimony made intent or mistake an 196 issue. The court noted that Defendant had suggested during cross-examination of 1 other witnesses that the shooting might have been accidental. Intent and lack of 2 mistake were “controverted and thus became a consequential issue in the case.” State 3 v. Niewiadowski , 120 N.M. 361, 364, 901 P.2d 779, 782 (C t. App. 1995). As a result, 4 evidence of prior bad acts would be admissible to show Defendant pulled the trigger 5 intentionally and not as a result of a mi stake or accident. Rule 11-404(B). Because 6 there is a reasonable basis for determin ing there was a proper purpose for admitting 7 the evidence of prior bad acts, the distri ct court did not abuse its discretion in 8 conditionally admitting the evidence. 9 Form of the Evidence 10 Defendant argues that even if the purpose for admitting the evidence was proper 11 under Rule 11-404(B), the district court s till erred because the evidence the State 12 would have presented would have been inadmi ssible hearsay. Since the district court 13 had a reasonable basis for finding that eviden ce could have been presented without the 14 use of inadmissible hearsay, we disagree. See Woodward, 121 N.M. 1, 4, 908 P.2d 15 231, 234 (1995). 16 The evidence of Defendant’s prior bad acts could have either been elicited 17 through the cross-examination of Defendant, or introduced through testimony from 18 Decker or Decker’s wife. Defendant’s responses to ques tions about the prior bad acts 197 would not be hearsay because Defendant woul d merely be talking about events in the 1 past, not attempting to introduce out-of-court statements. SeeRule 11-801(A), (C) 2 NMRA (defining hearsay to include only statements made outside of testimony at 3 trial). Any statement that Defendant made to other witnesses would also be 4 admissible against him because they woul d be an admission of a party-opponent under 5 Rule 11-801(D)(2)(a). Such statements are not hearsay under the definition in the 6 rules. SeeRule 11-801(D). Since the prior bad acts could have been introduced 7 through admissible non-hearsay evidence, the di strict court did not abuse its discretion 8 in allowing the State to present such evidence. 9 Relevance 10 Defendant argues that the evidence of prior bad acts was not relevant because 11 the prior bad acts occurred at a time too remo te from the time of the alleged crime and 12 because the probative value of the evid ence was substantially outweighed by its 13 prejudicial effect. Defendant cites Niewiadowski , 120 N.M. at 363-64, 901 P.2d at 14 781-82, for the proposition that New Mexico ha s a bright-line rule that any prior bad 15 acts that occur more than nine days prior to a crime are per se irrelevant. Defendant 16 argues that, because the acts in question inthis case occurred more than nine days 17 prior to the murder, the district court erred in admitting them. 18 The analysis of the probativ e value of evidence of prio r bad acts is a fact-driven 198 inquiry and is not subject to any bright-lin e rules regarding its temporal relationship 1 to the crime in question. See State v. Otto , 2007-NMSC-012, ¶ 14, 141 N.M. 443, 157 2 P.3d 8 (noting that determinations of unfair prejudice are fact based and that therefore 3 trial courts have much leeway in making su ch determinations). In this case, the 4 incidents occurred between a few months toa few weeks before the murder. The 5 evidence that these acts occurred would havebeen probative on the issue of whether 6 Defendant shot the victim intentionally orby accident. Without the evidence of prior 7 bad acts, the jury would bemore likely to believe that the shooting occurred 8 accidentally, which would have negated an element that the State had to prove. It is 9 also not manifestly clear that the evid ence would have unfairly prejudiced Defendant 10 when the events directly involved the vic tim and were probative of his intent with 11 regard to the victim. As a result, we cannot say that the decision to admit evidence of 12 prior bad acts was “clearly untenable or not justified by reason.” Woodward, 121 13 N.M. at 4, 908 P.2d at 234 (internal quotation marks and citation omitted). The 14 district court did not abuse its discretion in finding that the probative value of the prior 15 bad acts evidence was not substantially outweighed by its prejudicial effect, and we 16 affirm the district court on this issue. 17 Notice 18 Additionally, Defendant argues that he wa s not provided with pretrial notice of 199 the bad acts evidence. Since Defendant raises this issue for the first time on appeal, 1 we will not address the merits of Defendant’s arguments. See Rule 12-216(A) NMRA 2 (“To preserve a question for review it must appear that a ruling or decision by the 3 district court was fairly invoked.”). 4 As such, the district court did not abus e its discretion in conditionally admitting 5 evidence of Defendant’s prior bad acts. 6 TESTIMONY CONCERNING DEFENDANT’S SILENCE 7 Defendant next argues that the districtcourt erred in ruling that testimony 8 concerning Defendant’s request for an attorney was admissible because Defendant had 9 opened the door to such testimony by implying that Officer Paul Chavez failed to 10 question Defendant when provided an opportunityto do so. Prior to trial, the district 11 court ordered that Defendant’s request for an attorney wh en he was in police custody 12 would not be raised at trial. At trial, Officer Chavez tes tified about statements 13 Defendant made while Officer Chavez was processing Defendant’s belongings at the 14 police station on the night of the murder. These statements had been made voluntarily 15 to Officer Chavez after Defendant had reque sted an attorney at the police station, 16 which ended Agent Richard Williamson’s questioning of Defendant. On cross17 examination, defense counsel questioned O fficer Chavez’s failure to use recording 18 equipment available at the police station in order to record these statements by 1910 Defendant. Outside of the presence of th e jury, the State requested a ruling that 1 defense counsel had opened th e door to testimony about Defe ndant’s invocation of his 2 right to counsel by implying that the police had failed to record Defendant’s 3 statements because of their own incompeten ce. The district court agreed and ruled 4 that the State could raise the issue of De fendant’s invocation of his right to counsel 5 in order to provide an explanation for the absence of a recorded interrogation of 6 Defendant. Agent Williamson then te stified that Defendant invoked his Miranda 7 rights by requesting an attorney and the po lice did not further question him or record 8 any conversation with him b ecause Defendant’s invocati on ended their interrogation. 9 When the facts are not in dispute, a d ecision to allow the state to refer to a 10 defendant’s silence is a legal determination that we review de novo. See State v. 11 Foster , 1998-NMCA-163, ¶ 8, 126 N.M. 177, 967 P. 2d 852. As a general rule, it is 12 reversible error for the state to reference a defendant’s exercise of his right to silence 13 in the presence of a jury. See State v. Henry , 101 N.M. 266, 267, 681 P.2d 51, 52 14 (1984). However, the defense cannot, with impunity, comment on a defendant’s 15 silence. See State v. Ruffino , 94 N.M. 500, 503, 612 P.2d 1311, 1314 (1980). If the 16 defense comments on a defendant’s right to silence, it opens the door for the state to 17 do the same. Id. 18 In this case, defense counsel raised the issue on cross-examination of Officer 1911 Chavez’s decision not to interrogate Defendant or record any statements Defendant 1 made on cross-examination. The State’s explanation for Officer Chavez’s decision 2 was that Defendant had invoke d his right to counsel, which effectively precluded any 3 officers from questioning Defendant. Defendant used the State’s inability to testify 4 about Defendant’s silence as an offensive w eapon to create an inference that the police 5 were incompetent in their investigation without allowing the State the opportunity to 6 convince the jury of an alternate explanati on. If the State was not allowed to mention 7 Defendant’s exercise of his right to couns el, it would have had no explanation for the 8 failure to interrogate or record the statements Defendant made, leaving only 9 Defendant’s explanation of an incompetent investigation. 10 The district court did not err in conc luding that Defendant was attempting to 11 raise the issue of his own silence to his advantage, thereby opening the door to the 12 State’s evidence. See Ruffino , 94 N.M. at 503, 612 P.2d at 1314 (noting that the 13 protection against testimony regarding a defendant’s silence does not protect a 14 defendant who raises the issue). The distri ct court determined that Defendant had put 15 the State in a position in which the State could only address Defendant’s implications 16 of police misconduct by addressing Defendant’s invocation of his right to an attorney. 17 Defendant raised the issue of his own silence, thereby opening the door to the State 18 to present evidence on that issue. We affirm the district court on this issue. 1912 EXCLUSION OF VICTIM’S TOXICOLOGY REPORT 1 Defendant contends that the district c ourt erred in excluding a toxicology report 2 of the victim from the autopsy. Defendantargues that the report was not inadmissible 3 hearsay because it falls under the busin ess records exception, public records 4 exception, and Rule 11-807 NMRA residual hearsay exception for statements that 5 have circumstantial guarantees of trustworthiness. We review decisions on the 6 admissibility of evidence for abuse of discretion. Flores , 2010-NMSC-002, ¶ 25. 7 At trial, Defendant cross-examined Dr. Anne Brazey, who had performed the 8 victim’s autopsy. During this testimony, Defendant offered a toxicology report into 9 evidence. The State objectedon the grounds that the report was inadmissible hearsay 10 because the report had been prepared by an independent laboratory and the report had 11 not been relied upon by Dr. Brazey. The State also objected that the proper 12 foundation had not been laid for the report to be entered into evidence. Defendant 13 argued that the evidence was admissible under the public records exception, under the 14 business records exception, or as a st atement made for the purpose of medical 15 diagnosis. Defendant cited State v. Dedman , 2004-NMSC-037, ¶ 24, 136 N.M. 561, 16 102 P.3d 628, overruled by State v. Bullcoming, 2010-NMSC-007, 147 N.M 487, 226 17 P.3d 1, for the proposition that toxicology reports are admissible under the business 18 records and public records exceptions to the h earsay rule. The district court sustained 1913 the State’s objection on both grounds, ruling that the evidence was inadmissible 1 hearsay and that Dedmanis limited to cases involving DWI charges and that the 2 proper foundation had not been laid for admitti ng the record into ev idence. The court 3 further held that the report was irrelevant because the timing of the report indicated 4 that it was not probative to Dr. Brazey’s determination as to cause of death. 5 Defendant argues that the district court erred by improperly interpreting 6 Dedman . Regardless of the state of the law at the time of the district court’s ruling, 7 our Supreme Court has since clarified that toxicology reports, such as the one at issue 8 in this case, do not fall under the public records exception and business records 9 exception to the hearsay rule. See Bullcoming , 2010-NMSC-007, ¶ 16; see also State 10 v. Aragon , 2010-NMSC-008, ¶ 17, 147 N.M. 474, 225 P.3d 1280. Further, the 11 rationale of our Supreme Court for this determination negates Defendant’s residual 12 exception for statements that have a resi dual guarantee of trustworthiness argument. 13 The Court in Aragondetermined that “records thatare created as a system of 14 recording events or occurrences that havelittle or nothing to do with the management 15 or operation of [a] business” are not c onsidered “inherently trustworthy.” 2010- 16 NMSC-008, ¶ 18 (internal quotati on marks and citation omitted). 17 Although this change occurred after trial, the new holding is retroactively 18 applicable to cases in which the i ssue was raised and preserved below. See State v. 1914 Nunez , 2000-NMSC-013, ¶ 114, 129 N.M. 63, 2 P.3d 264. Thus, the toxicology 1 report at issue is hearsay that does not fall into any of the exceptions detailed in Rule 2 11-803 NMRA or the residual hearsay exception of Rule 11-807. 3 The district court also did not abuse its discretion in excluding the report based 4 on a lack of foundation. Dr. Brazey did not prepare the report, did not work at the 5 facility that prepared the report, and did not rely on the report in forming her opinion 6 as to the cause of death of the victim. As a result, it was reasonable for the court to 7 conclude that the witness was not able to provide reliable testimony concerning the 8 methods used in preparing the report and whether the report was prepared in the 9 normal course of business operations. SeeRule 11-803(F), (H). 10 In addition, the district court did not err in determining that the information in 11 the report, the victim’s blood alcohol conten t (BAC), was not relevant. The cause of 12 death was not a disputed issue at trial. Additionally, ample evidence had already been 13 presented indicating that the victim was intoxicated at the time she was shot. This 14 evidence could render the additional eviden ce of intoxication needlessly cumulative, 15 warranting its exclusion under Rule 11-403. Despite Defendant’s contentions, there 16 is no special probative value of BAC in non-DWI cases, such that the report did not 17 offer any special insight into the victim’s intoxication. See State v. Garcia , 2005- 18 NMCA-042, ¶ 33, 137 N.M. 315, 110 P.3d 531 (holding that BAC evidence, by itself, 1915 is not probative of aggressiveness). 1 MOTION TO DISMISS FIRST DEGREE MURDER CHARGE 2 Defendant argues that the di strict court erred in failing to dismiss the first 3 degree murder count on the grounds that the police were negligent in failing to collect 4 possible exculpatory evidence. Defendant argues that the police were negligent in 5 failing to collect evidence relating to Defendant’s BAC at the time of the shooting, 6 which would have been probative to his voluntary intoxication defense to first degree 7 murder. Defendant argues that the failureof the police to collect this evidence 8 mandated a determination that the evidence th at the police failed to collect would have 9 been conclusive on the issue of voluntary intoxication. 10 We review the question of whether to dismiss a count as a sanction for police 11 misconduct for abuse of discretion. See State v. Ware , 118 N.M. 319, 326, 881 P.2d 12 679, 686 (1994). A determination that a failure to collect evidence violated a 13 defendant’s due process rights requires a two-part showing. “First, . . . the evidence 14 that the [s]tate failed to gath er . . . must be material tothe defendant’s defense.” Id. 15 at 325, 881 P.2d at 685. Sec ond, in order to determine whether any sanctions are 16 appropriate, the defendant must show th at the failure to collect evidence was 17 performed in bad faith or was th e result of gross negligence. Id. The district court did 18 not abuse its discretion in denying Defendant’s motion to dismiss. 1916 We cannot say that it was beyond reason for the district court to conclude that 1 the evidence of Defendant’s BAC would not have been material to his defense. 2 Defendant argues that evidence of his BAC would have ne gated the charge of first 3 degree murder. However, Defendant wa s convicted of second degree murder, to 4 which his voluntary intoxication could not have served as a defense. See State v. 5 Tapia , 81 N.M. 274, 276, 466 P.2d 551, 553 ( 1970). As a result, no amount of 6 evidence of voluntary intoxication would haveassisted Defendant’s case with regard 7 to the charge of second degree murder. Thus, there was no “reasonable probability 8 that, had the evidence been [available] to the defense, the result of the proceeding 9 would have beendifferent.” Ware , 118 N.M. at 325, 881 P. 2d at 685 (alteration in 10 original) (internal quotation marks and citation omitted). 11 In addition, we note that the analysis of the potential relevance of BAC 12 evidence in this case is similar to the anal ysis indicated above for the evidence of the 13 victim’s BAC. It is unclear that there would be any probative value to assigning a 14 BAC number to Defendant’s intoxication wh en there was already significant evidence 15 that Defendant was intoxicated. 16 The district court also did not err in determining that there was no gross 17 negligence or bad faith on the part of the investigating officers. In reaching this 18 conclusion, the district court made several factual findings concerning the 1917 investigation. In particular, the court found that there was no sign of intoxication 1 observed by the five officers at the scen e of the crime and that there were no 2 circumstances existing at the scene that warranted pursuing alcohol testing or 3 investigation procedures. We defer to the di strict court’s factual findings if they are 4 supported by substantial evidence. State v. Urioste , 2002-NMSC-023, ¶ 6, 132 N.M. 5 592, 52 P.3d 964. 6 “Substantial evidence is relevant evid ence that a reasonable mind might accept 7 as adequate to support a conclusion.” State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 8 438, 971 P.2d 829. The district court revi ewed the circumstances of Defendant’s 9 behavior during the 911 call and at the scen e of the crime, along with the evidence 10 presented from the State’s attorney that there was no reason for the police to pursue 11 an alcohol investigation. We cannot say that the district court’s factual determinations 12 were against the manifest weight of this evidence. In light of these factual 13 determinations, it was within reason for the di strict court to conclude that the police 14 were not grossly negligent, nor were they operating in bad faith. Given this 15 conclusion, it was appropriatefor the district court to deny Defendant’s request to 16 dismiss the first degree murder charge as a sanction for investigatory misconduct. 17 Defendant also questions the police’s failure to collect two other pieces of 18 evidence, gunshot residue from the victim’s hand and Decker’s BAC, for the first time 1918 on appeal. Defendant has failed to preserve his objections on these issues by failing 1 to raise them at trial. See Rule 12-216(A). As a result, we will not consider the merits 2 of his arguments as to those pieces of evidence. 3 SUFFICIENCY OF THE EVIDENCE 4 Defendant next argues that the districtcourt erred in denying his motion for 5 directed verdict on the charges of first and second degree murder based on sufficiency 6 of the evidence. Defendant argues that th e evidence presented di d not establish that 7 he had the intent to kill necessary for firs t degree murder and that it did not establish 8 that there was sufficient provocation towarrant a lesser charge of voluntary 9 manslaughter instead of sec ond degree murder. We agree with the district court’s 10 decision because there was sufficient eviden ce for the jury to find against Defendant. 11 “The test for sufficiency of the evid ence is whether substantial evidence of 12 either a direct or circumstantial nature exists to support a verdict of guilt beyond a 13 reasonable doubt with respect to every element essential to a conviction.” State v. 14 Sena , 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198 (internal quotation marks 15 and citation omitted). We review the evidence as a whole and indulge all reasonable 16 inferences in favor of the state in order to ascertain whether “ anyrational trier of fact 17 could have found the essential elements of the crime beyond a reasonable doubt[.]” 18 Id. (internal quotation marks and citation omitted). “On appeal, we will not reweigh 1919 the evidence nor substitute our judgment for th at of the fact finder provided that there 1 is sufficient evidence to support the verdict.” State v. Fuentes , 2010-NMCA-027, 2 ¶ 13, 147 N.M. 761, 228 P.3d 1181 (internal quotation marks and citation omitted). 3 In order to prove that Defendant committed second degree murder, the State had 4 to prove that: 5 1. [Defendant] killed [the victim]; 6 7 2. [Defendant] knew that his acts created a strong probability 8 of death or great bodily harm to [the victim]; 9 10 3. This happened in New Mexico on or about the 10 thday of 11 December, 2006. 12 The second element was the only issue at trial. In order to prove that element, the 13 State provided evidence that Defendant admitte d to shooting the victim to Decker, the 14 911 operator, and the police. He also told the police thatthe victim hit him over the 15 head with spurs, and “that’s when [he] di d it.” He admitted shooting her in the neck 16 and indicated that, although they were fighti ng, it was no excuse for what he did. In 17 addition, the State presented evidence that Defendant was familiar with firearms and 18 owned several of them. The evidence also s howed that the partic ular firearm used in 19 the shooting required Defendant to pull the hammer back before pulling the trigger in 20 order to fire. Finally, evidence showed th at Defendant waited anhour after the victim 21 hit him with spurs before attacking her and that he pushed her to the ground and put 2220 the gun up to her neck despite Decker’s attempts to stop Defendant. This evidence is 1 sufficient to conclude that Defendant kne w that his acts created a strong probability 2 of death or great bodily harm to the victim. 3 Defendant also argues that the evidence demonstrated that there was sufficient 4 provocation to warrant a conviction for voluntary manslaughter instead of second 5 degree murder. In reviewing the record for substantial evidence, it is not our task to 6 evaluate whether an alternate hypothesi s might plausibly be believed from the 7 evidence presented. Fuentes , 2010-NMCA-027, ¶ 13. As a result, we will decline 8 Defendant’s invitation to indulge in speculation on this matter. 9 Defendant contends that the districtcourt erred in denying his motion for 10 directed verdict with regard to the charge of first degree murder. Since Defendant was 11 acquitted on that charge, a ruling in Defendant’s favor on this issue would not provide 12 him any relief. The issu e is therefore moot. See State v. Sergio B ., 2002-NMCA-070, 13 ¶ 9, 132 N.M. 375, 48 P.3d 764 (“An appeal is moot when no actual controversy 14 exists, and an appellate ruling will not grant the appellant any actual relief.”). Thus, 15 we will not address the merits of De fendant’s arguments on this issue. See id. (“As 16 a general rule, appellate courts should not decide moot cases.”). 17 DEFENDANT’S REQUESTED JURY INSTRUCTIONS 18 Defendant argues that the district c ourt erred in denying his proffered jury 1921 instructions with regard to (1) negligent use of a firearm as a lesser-included offense 1 to second degree murder, (2) unlawfulness as an element of murder, (3) the victim as 2 the proximate cause of her own shooting, and (4) the victim’s contributory negligence. 3 However, Defendant presents no argument on appeal other than bald assertions that 4 the instructions were wrongfully denied. De fendant does not cite to the record or to 5 any authority in support of these assertions . We will not make Defendant’s argument 6 for him. See In re Adoption of Doe , 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) 7 (“We assume where arguments in briefs are unsupported by cited authority, counsel 8 after diligent search, was unable to find any supporting authority[; we] will not do this 9 research for counsel.”). We affirm the district court on this issue. 10 INEFFECTIVE ASSISTANCE OF COUNSEL 11 Defendant argues that his convictions should be reversed based on the 12 ineffective assistance of his trial counsel . Defendant argues that his trial counsel 13 failed to provide adequate a ssistance by (1) failing to request jury instructions for 14 voluntary and involuntary manslaughter, (2) failing to file a motion to change venue 15 due to pretrial publicity, (3) failing to file a motion to continue the trial due to the fact 16 that counsel was not able to interview Decker until a few days before trial, and (4) 17 failing to subpoena the Scientific Labor atory Division (SLD) doctor in order to 18 authenticate the victim’s toxicology results. 1922 A claim of ineffective assistance of couns el presents a question of law that we 1 review de novo. See State v. Dylan J. , 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 2 P.3d 44. In order to prove th at his trial counsel was ine ffective, Defendant must show 3 both “that his counsel’s performance was defi cient and that the deficient performance 4 prejudiced his defense.” Id. ¶ 36. 5 Jury Instructions for Manslaughter Charges 6 We will not consider a decision of trial counsel to be ineffective if we “can 7 conceive of a reasonable trial tactic whic h would explain the counsel’s performance.” 8 Id. ¶ 39 (internal quotation marks and citation omitted). Defense counsel’s decision 9 not to offer jury instructions on volunt ary and involuntary manslaughter could have 10 served the reasonable purpose of securing anacquittal for Defendant if the jury found 11 the necessary elements for either of the manslaughter charges but not those for 12 murder. This all-or-nothing approach is a decision relating to trial strategy, which we 13 will not second guess on appeal. See id. ; see also State v. Baca , 1997-NMSC-059, 14 ¶ 27, 124 N.M. 333, 950 P.2d 776 (recognizing that a decision not to include an 15 instruction for a lesser-included offense might create a lower overall probability of 16 conviction for a defendant). As a result, defense counsel was not ineffective in this 17 decision. 1823 Change of Venue Motion 1 Defendant’s arguments concerning the motion to change venue center around 2 potential juror bias based on the number of jurors in the original pool. However, 3 Defendant acknowledges that the jurors who i ndicated that they could not be impartial 4 due to pretrial publicity were stricken from the pool. Defendant makes no argument 5 that the 31 remaining jurors from which his jury was selected were biased. Defendant 6 fails to cite to any authority or any part of the record on appeal to demonstrate that he 7 suffered actual prejudice as a re sult of a motion to change venue not being filed. As 8 a result, we will not consid er Defendant’s arguments. See In re Adoption of Doe , 100 9 N.M. at 765, 676 P.2d at 1330. 10 Motion for Continuance 11 Defendant argues that defens e counsel’s failure to file a motion to continue the 12 trial prejudiced Defendant’s case because it prevented him from fully briefing pretrial 13 matters, such as the evidence of prior bad acts. Defendant does not make any 14 argument as to what effect additional briefi ng would have had in the resolution of the 15 issue. As a result, we cannot conclude that Defendant has suffered prejudice as a 16 result of his counsel’s failure to move to continue his trial. See id. 17 Failure to Subpoena SLD Doctor 18 Finally, Defendant argues that his couns el was ineffective in not subpoenaing 1924 a SLD doctor who could havelaid the foundation for admitting the toxicology results 1 of the victim. The district court, however, excluded the evidence on grounds of 2 relevance as well. Thus, even with th e proper foundation, the evidence of victim’s 3 toxicology results would not have been admitted at trial regardless of defense 4 counsel’s actions. As a result, we cannotconclude “that the deficient performance 5 prejudiced [Defendant’s] defense.” Dylan J. , 2009-NMCA-027, ¶ 36. 6 CONCLUSION 7 For the foregoing reasons, we affirm the ruling of the district court. 8 IT IS SO ORDERED. 9

___________ ___________ __________ 10 JAMES J. WECHSLER, Judge 11 WE CONCUR: 12

________________________________ 13 ROBERT E. ROBLES, Judge 14

________________________________ 15 LINDA M. VANZI, Judge 16