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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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. 31,741 4 LARRY LUEVANO, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 J. Richard Brown, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Ralph E. Trujillo, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 The Appellate Law Offices of Scott M. Davidson 14 Scott M. Davidson 15 Albuquerque, NM 16 for Appellant 172 MEMORANDUM OPINION 1 HANISEE, Judge. 2 {1} Larry Luevano (Defendant) was convictedof one count of criminal sexual 3 penetration in the first degree of a child under thirteen years of age (CSPM), pursuant 4 to NMSA 1978, Section 30-9-11(D)(1) (2009) . Defendant appeals, arguing that: (1) 5 there was insufficient evidence to support his conviction; (2) the district court 6 fundamentally erred in admitting evid ence of other uncharged sexual acts; and (3) his 7 trial counsel was ineffective. We affirm. 8 BACKGROUND 9 {2} Following allegations by his stepdaughter (Victim), Defendant was charged 10 with one count of first-degree CSPM. The criminal information alleged that “on or 11 about October, 2009, . . . [D]efendant did cau se [Victim] to engagein the insertion, 12 to any extent, of his fingers into the vaginaof [Victim], and [Victim] was twelve years 13 of age or younger” at the time of the penetr ation. At trial, Victim testified that 14 Defendant penetrated her vagina with his finger(s), not once as alleged in the 15 indictment, but on four separate occasi ons over a four-year period. While Victim 16 could not recall the specific dates of the pe netrations, she testified that each took place 17 within New Mexico, and the last inci dent occurred around Halloween 2009, before 18 she turned twelve years old. At no point did Defendantobject to admission of 191 Although Defendant reserves the argument related to insufficient evidence for 18 later in the brief in chief, for the purposes of brevity and clarity, we address it first. 19 3 Victim’s testimony regarding the three uncharged acts of CSPM; moreover, 1 Defendant’s counsel cross-examined Vi ctim regarding these uncharged acts. 2 {3} At the conclusion of the State’s case, th e defense moved to “dismiss . . . or for 3 a directed verdict” on the basis that Vic tim’s testimony was sporadic, and the State 4 failed to meet its burden to establish a prima facie case. The court denied the motion, 5 stating that the issues raised by the defe nse were for the jury to resolve, and “a 6 reasonable trier of fact could find [Defe ndant] guilty.” Defendant took the stand and 7 testified that he never sexually penetrated Victim and sp eculated that the allegations 8 arose from an argument with Victim. Contrary to Defendant’s testimony, the jury 9 returned a guilty verdict on the single count of CSPM. 10 DISCUSSION 11 I. Sufficient Evidence Supported Defendant’s Conviction 12 {4} Defendant argues that Victim’s testimony was inherently unreliable and as such 13 was insufficient to justify a determination of guilt beyond a reasonable doubt when 14 considered by a rational factfinder. 1 “The test for sufficiency of the evidence is 15 whether substantial evidence of either a di rect or circumstantial nature exists to 16 support a verdict of guilty beyond a reasonabl e doubt with respect to every element 17 essential to a conviction.” State v. Fierro , 2014-NMCA-004, ¶ 35, 315 P.3d 319 184 (internal quotation marks and citation omitted). “[S]ubstantial evidence [is] such 1 relevant evidence as a reasonable mind might accept as adequate to support a 2 conclusion.” State v. Salgado , 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 3 (internal quotation marks and citation omitted). Evidence is reviewed in the light most 4 favorable to upholding the verdict. Fierro , 2014-NMCA-004, ¶ 35. Questions 5 regarding the credibility of w itnesses and the weight to begiven of their testimony are 6 determined by the jury. State v. Vigil , 1975-NMSC-013, ¶ 16, 87 N.M. 345, 533 P.2d 7 578. Where a jury verdict in a criminal cas e is supported by substantial evidence, the 8 verdict will not be disturbed on appeal. State v. Sutphin , 1988-NMSC-031, ¶ 21, 107 9 N.M. 126, 753 P.2d 1314. 10 {5} Here, Defendant was charged with C SPM, pursuant to Section 30-9-11(D)(1)

. 11 To convict Defendant of this charge, the jurywas instructed that it must find that the 12 State proved beyond a reasonable doubt that: (1) “[D]efendant caused the insertion, 13 to any extent, of his finger into the vaginaof [Victim];” (2) Victim “was a child under 14 the age of thirteen (13);” and (3) “[t]his happened in New Mexico on or about October 15 2009.” See UJI 14-957 NMRA. 16 {6} Our review of the record indicates th at Victim testified that around Halloween 17 2009, at her home, Defendant penetrated her vagina withhis finger(s). Specifically, 18 Victim stated that “the last time [she could] remember,” Defendant “once again put 195 [a] blanket over [them] . . . and then he did what he did last time.” The State sought 1 to clarify this statement, and Victim acknowledged that she was “talking about 2 [Defendant] putting his finger in [her] vagina.” Victim stated that this occurred in her 3 home, which she previously testified was located in Artesia, New Mexico. Victim’s 4 testimony satisfied each element re quired for conviction of CSPM. See UJI 14-957. 5 Although Defendant argues that“[n]o rational factfinder could have found that the 6 State had proved the essential elements of the offense beyond a reasonable doubt in 7 light of the many gaps in [Victim’s] memory . . . and the inherent implausibility 8 of . . . her testimony,” it is the duty of the jury to weigh the credibility of the 9 witnesses. State v. Santillanes , 1974-NMCA-092, ¶ 2, 86 N.M. 627, 526 P.2d 424. 10 “We emphasize that the finder of fact, not an appellate court, must reconcile any 11 conflicts in the evidence and determine where truth and credibility lies. The fact finder 12 can choose to believe the State’s testimony and disbelieve De fendant’s version of 13 events.” Fierro , 2014-NMCA-004, ¶ 40. Viewing the evidence in the light most 14 favorable to the verdict, we conclude th at the testimony of Victim is sufficient to 15 support Defendant’s conviction. 16 II. The District Court Did Not Commi t Fundamental Error in Admitting the 17 Other Acts Evidence 18 {7} As a second point of appeal , Defendant argues that the district court erred in 19 admitting testimony regarding uncharged incidents of CSPM as this evidence was 206 inadmissible under Rule 11-404(B) NMRA. Because Defendant failed to raise an 1 objection to this testimony in district court, we review only fo r fundamental error. See 2 Rule 12-216(B)(2) NMRA (providing an appellate court the discretion to review 3 questions of fundamental error or fundamental rights as an exception to the 4 preservation rule); State v. Barber , 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633; 5 State v. Laney , 2003-NMCA-144, ¶ 47, 134 N.M. 648, 81 P.3d 591. “For an error to 6 be deemed fundamental, it must go to the foundation or basis of a defendant’s rights 7 or must go to the foundation of the case or take from the defendant a right which was 8 essential to his defense and which no court could or ought to permit him to waive.” 9 State v. Romero , 2013-NMCA-101, ¶ 8, 311 P.3d 1205 (internal quotation marks and 10 citation omitted). In order for us to determine that a fundamental error occurred, we 11 must conclude that the error was of such magnitude that it affected the outcome of the 12 trial, resulted in a denial of substantial justice, a miscarriage of justice, or a conviction 13 that shocks the conscience. State v. Dietrich , 2009-NMCA-031, ¶ 30, 145 N.M. 733, 14 204 P.3d 748. 15 {8} Rule 11-404(B)(1) prohibits the use of “[ e]vidence of a crime, wrong, or other 16 act . . . to prove a person’s ch aracter in order to show that on a particular occasion the 17 person acted in accordance with the character.” Pursuant to this rule, Defendant argues 18 that Victim’s testimony regarding the unc harged incidents of CSPM were highly 197 prejudicial, and the jury likely submitted a guilty verdict based on this testimony, as 1 there was insufficient evidence to convict based on the testimony related to the 2 charged offense. Initially, we note that we have already determined that Victim 3 provided sufficient testimony to establish each of the requisite elements for the 4 October 2009 charge of CSPM. Based on a note the jury submitted inquiring into the 5 other incidents Victim had alleged in her testimony, Defendant argues that the jury 6 based its verdict upon “[its] be lief that [the crime] might have occurred on one or 7 more of the times discussed at . . . trial.” Responding to the note, the district court 8 instructed the jury that it “must rely on th e instructions presented” to it. The record 9 indicates that the jury was instructed thatin order to convict Defendant, it must have 10 found that the penetration occurred “on or about October 2009.” The jury was not 11 instructed as to any other date, and was further instructed that it is the duty of the jury 12 to “follow the law as contained in [the ] instructions.” Our Supreme Court has 13 determined that we presume juries have followed the written instructions provided to 14 them. State v. Smith , 2001-NMSC-004, ¶ 40, 130 N.M . 117, 19 P.3d 254. Moreover, 15 under Rule 11-404(B), we note that it is not certain that the testimony of other acts 16 would have been disallowed in the firs t instance. Exceptions to Rule 11-404(B) 17 include admitting evidence for “another purpos e, such as proving motive, opportunity, 18 intent, preparation, plan, knowledge, identity, absence of mi stake, or lack of accident.” 198 Rule 11-404(B)(2). We have in the past uphe ld allowance of other acts evidence in the 1 context of sexual abuse. See State v. Sena , 2008-NMSC-053, ¶¶ 16-17, 144 N.M. 821, 2 192 P.3d 1198; State v. Trujillo , 1995-NMCA-008, ¶ 18, 119 N.M. 772, 895 P.2d 672. 3 4 {9} We conclude that Defendant has failed to demonstrate that the admission of the 5 testimony related to the uncharged incident s of CSPM was of “such magnitude that 6 it affect[ed] the outcome of the trial[,]” re sulted in a denial of substantial justice, 7 miscarriage of justice, or a convi ction that shocks the conscience. Dietrich , 2009- 8 NMCA-031, ¶ 35. Accordingly, we will not reverse Defendant’s conviction on the 9 basis of fundamental error. 10 III. Defendant Failed to Establish a Prima Facie Case of Ineffective Assistance 11 of Counsel 12 {10} Defendant’s final argument is that he received ineffective assistance of counsel 13 based on defense counsel’s: (1) failure to object to Victim’s testimony about the first 14 three incidents of criminal sexual penetration, and (2) misguided arguments to both 15 the judge and jury, including a statement during closing argument indicating 16 agreement with the prosecutor. Defendant re quests that this Court grant a new trial 17 with effective counsel or remand for an evidentiary h earing to determine whether 18 counsel was effective. Defendant additionally requests that this Court not preclude 19 him from pursuing his claim in a co llateral habeas corpus proceeding. 209 {11} We review ineffective assistance of counsel claims de novo. State v. Bahney , 1 2012-NMCA-039, ¶ 48, 274 P.3d 134. A prima f acie case of ineffective assistance of 2 counsel requires that Defendant demonstr ate that: “(1) counsel’s performance fell 3 below that of a reasonably competent atto rney; (2) no plausible, rational strategy or 4 tactic explains counsel’s c onduct; and (3) counsel’s appare nt failings were prejudicial 5 to the defense.” Id. To satisfy the prejudice prong, a de fendant must show that there 6 is a reasonable probability that the outco me of the proceeding would have been 7 different “but for” the errors of counsel. State v. Hernandez , 1993-NMSC-007, ¶ 28, 8 115 N.M. 6, 846 P.2d 312 (internal quotation marks and citation omitted). Deficient 9 performance is established when defense counsel’s “representation fell below an 10 objective standard of reasonableness.” State v. Roybal , 2002-NMSC-027, ¶ 21, 132 11 N.M. 657, 54 P.3d 61 (internal quotation marks and citation omitted). We review 12 counsel's performance in a “highly defere ntial” manner and “counsel is strongly 13 presumed to have rendered adequate assistance and made all significant decisions in 14 the exercise of reasonable professional judgment.” Lytle v. Jordan , 2001-NMSC-016, 15 ¶ 50, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted). We 16 will not second guess the trial tactics and strategies of counsel in reviewing a claim 17 of ineffective assistance of counsel. State v. Jacobs , 2000-NMSC-026, ¶ 49, 129 N.M. 18 448, 10 P.3d 127. 1910 {12} Defendant first contends that defense c ounsel was ineffective in failing to object 1 to Victim’s testimony about the first three incidents of CSPM. Defendant contends 2 that counsel’s failure to object to the testimony regarding the uncharged acts created 3 a presumption of prejudice that Defendant ’s counsel was ine ffective based upon the 4 likelihood that the jury rendered its verdict upon this testimony. Defendant fails to cite 5 to any caselaw in support of this contenti on and provides us withlittle more than this 6 mere assertion. Defendant’s belief that the jury inappropriately relied on this 7 testimony in reaching its verdict is insuffi cient to establish a prima facie case of 8 ineffective assistance of counsel. See State v. Jim , 2014-NMCA-___, ¶ 31, ___ P.3d 9 ___, (No. 31,008, April 3, 2014) (holding that the defendant failed to establish a prima 10 facie case of ineffective assi stance where he failed in provide any argument in support 11 of his assertions). We havealready determined that th ere was sufficient evidence to 12 support Defendant’s conviction, and we cannot conclude that the outcome of the trial 13 would have been different had counsel objected to the admission of Victim’s 14 testimony as to the uncharged acts. We cannot conclude, based on the record before 15 us, that there was no rational or plausible strategy or tactic to explain counsel’s 16 conduct. Accordingly, we determine that De fendant failed to establish a prima facie 17 case of ineffective assistance as to this claim on direct appeal. 1811 {13} Secondly, Defendant asserts that his trial counsel was ineffective in arguing 1 credibility issues to the judge on the direct ed verdict motion, arguing “technical legal 2 issues to the jury in closing argument,” and indicating agreement “with ‘a lot’ of what 3 the prosecution argued in closing argument.” Regarding this aspect of his arguments, 4 we note that Defendant provi des no further argument or specific explanation related 5 to the assertion that counsel presented im proper arguments to the judge and jury. Such 6 general arguments have been rejected by this Court as a basis to establish ineffective 7 assistance. Id . Furthermore, our review of the record shows that defense counsel did 8 not indicate agreement with the prosecutor as to the evidence presented, or as to 9 Defendant’s guilt as the brief in chief implie s. Defense counsel stated that he agreed 10 with the prosecutor that “at this point in the trial, [the jury] probably already made 11 [its] mind up” and generally ag reed with the prosecutor’s st atement that the jurors had 12 a “very difficult decision” to make, but main tained clearly that the jury had a very 13 difficult decision to make given the testimony in the case. Without citing to any 14 caselaw in support of his contention and without providing any legal argument, 15 Defendant asserts that the “errors of counsel served no t actical or strategic purpose, 16 and fell below the standard of competent counsel, and prejudic[ing Defendant’s] right 17 to a fair trial.” This mere assertion is insufficient to establish a prima facie case of 18 ineffective assistance of counsel. Id. Because Defendant has faile d to establish a prima 1912 facie case on either of his claims, we deny his request for a new trial. See State v. 1 Baca , 1997-NMSC-059, ¶¶ 30, 38, 124 N.M. 333, 950 P.2d 776 (denying the 2 defendant a new trial on the basis that he failed to establish a prima facie case for 3 ineffective assistance of counsel). We add itionally deny his request for an evidentiary 4 hearing on the same basis. See State v. Swavola , 1992-NMCA-089, ¶ 3, 114 N.M. 472, 5 840 P.2d 1238 (“We . . . limit remand to thos e cases in which the record on appeal 6 establishes a prima facie case of ineffec tive assistance.”). However, our conclusion 7 that Defendant failed to establish a prima facie case of ineffective assistance “in no 8 way impairs Defendant’s ability to later bring such a clai m in a habeas proceeding.” 9 Bahney , 2012-NMCA-039, ¶ 53. 10 CONCLUSION 11 {14} For the foregoing reasons, we affirm Defendant’s conviction. 12 {15} IT IS SO ORDERED. 13

_________________________________ 14 J. MILES HANISEE, Judge 1513 WE CONCUR: 1

_________________________________ 2 MICHAEL E. VIGIL, Judge 3

_________________________________ 4 LINDA M. VANZI, Judge 5