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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,960 9 OSIE FIELDS, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 12 Mark Terrence Sanchez, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Albright Law & Consulting 17 Jennifer R. Albright 18 Albuquerque, NM 19 for Appellant 20 MEMORANDUM OPINION 21 VANZI, Judge. 22 Defendant appeals hi s convictions for two counts of CSP in the first degree 23 (child under the age of thirteen). We propos ed to affirm in a calendar notice, and we 242 have received a memorandum in opposition to our notice. We have duly considered 1 Defendant’s arguments, but we find them unpersuasive. We affirm. 2 Defendant again argues that he was deni ed the effective assistance of counsel. 3 In addition to his argument that trial couns el did not call certainwitnesses and did not 4 introduce certain evidence, De fendant now argues that his counsel was ineffective for 5 submitting a less than complete docketing statement. 6 As discussed in our calendar notice, a prima facie case of in effective assistance 7 of counsel requires a showing that trial counsel’s performance was deficient and that 8 Defendant suffered prejudice. State v. Aker , 2005-NMCA-063, ¶ 34, 137 N.M. 561, 9 113 P.3d 384. To demonstrate prejudice, De fendant must show that “there is a 10 reasonable probability that, but for counsel’s unprofessional errors, the result of the 11 proceeding would have been different.” Id. (internal quotation marks and citation 12 omitted). In response to our calendar notice, Defendant claims that he was prevented 13 from establishing an alibi based on his clai m that he was incarcer ated at the time of 14 the alleged offenses. Defendant suggests that he would have called his girlfriend and 15 the records custodian of the jail to testif y that he was incarcerated in June 2007 and 16 was released around June 29, 2007. [MIO 2, 7] At trial, af ter the victim testified that 17 the events occurred in July 2007, the charge s and jury instructions were amended to 18 conform to that evidence. [MIO 6] Oncross-examination of the victim, defense 193 counsel was able to elicit an admission that the events were previously reported to 1 have occurred in June 2007. [MIO 6] The jury was presented with allegations that 2 the offenses occurred “on or about June or July 2007,” and with testimony from the 3 victim that the offenses occurred in July2007. [MIO 1, 6] Therefore, even if 4 Defendant had been able to establish through witnesses or evidence that he was 5 incarcerated in June 2007, Defendant has not demonstrated a reasonable probability 6 that but for trial counsel’s failure to file a notice of alibi or failure to call witnesses, 7 the jury’s verdict would have been di fferent. Furthermore, Defendant has not 8 demonstrated that, but for the defects in the docketing statement, there would have 9 been a reasonable probability that the jury would have found Defendant innocent of 10 the charges. We hold that Defendant has failed to present a prima facie showing that 11 his counsel was ineffective. Defendant may, however, pursue his claims through a 12 habeas corpus petition. 13 Defendant continues to claim that th e evidence was insufficient to support a 14 finding that he “intentionally had sexual intercourse” with the victim. [MIO 9] 15 Defendant claims that the delay in reporting the offenses and the victim’s inconsistent 16 testimony show that the evidence was in sufficient to support the convictions, 17 particularly where Defendant was incarcerated in June 2007. [MIO 9-10] Defendant 184 urges this Court to place this case on the general calendar rather than use the limited 1 facts contained in the docketing statement and record proper. 2 As discussed in our calendar notice, the victim testified that Defendant sexually 3 penetrated her two times while she was staying at her grandmother’s home in June 4 or July of 2007. [DS 2-4] Detective Black testified that his investigation revealed 5 facts consistent with the vic tim’s allegations, and the SANEnurse testified that, based 6 on examination of the victim, the victim had been penetrated. As for Defendant’s 7 claim that delay in re porting and inc onsistent testimony should lead to a 8 determination that the evidence was in sufficient to support the convictions, as 9 explained in the calendar notice, the fact finder determines credibility and weight of 10 the evidence, and the fact finder resolves conflicts in the testimony. See State v. 11 Hughey , 2007-NMSC-036, ¶ 16, 142 N.M. 83, 163 P.3d 470. We hold that there was 12 sufficient evidence to support Defendant’s convictions. 13 For the reasons discussed in this opini on and in our calendar notice, we affirm 14 Defendant’s convictions. 15 IT IS SO ORDERED. 16

__________________________________ 17 LINDA M. VANZI, Judge 185 WE CONCUR: 1

_________________________________ 2 CELIA FOY CASTILLO, Chief Judge 3

_________________________________ 4 JONATHAN B. SUTIN, Judge 5