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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,573 4 GREGORY MITCHELL, 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 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Will O’Connell, Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VIGIL, Chief Judge. 17 {1} Defendant appeals from jury verdicts fi nding him guilty of DWI (8th offense), 18 driving while license suspended or revoked, reckless driving, and open container. [RP 192 192–99] This Court issued a calendar notice proposing to affirm. Defendant has filed 1 a memorandum opposing this Court’s proposeddisposition, and has moved to amend 2 his docketing statement. Having given due consideration to Defendant’s arguments 3 in opposition, we affirm. Moreover, Defe ndant’s motion to amend his docketing 4 statement is GRANTED , and we remand to the district court for correction of the 5 judgment and sentence. 6 Motion to Amend the Docketing Statement 7 {2} Defendant moves to amend his docketing st atement to include the issue that the 8 judgment and sentence erroneously states that he was convicted of false 9 imprisonment. [MIO 5; RP 304, 196] Upon review of the reco rd, we agree with 10 Defendant that the statement in the judgmen t and sentence “that the defendant is guilty 11 of . . . Count 5: False Imprisonment, NM SA 1978[, § 30-4-3 (1963)], a fourth degree 12 felony[,]” was a typographical error. [RP 304] We remand to the district court for 13 correction of the judgment and sentence. 14 Arraignment 15 {3} Defendant continues to argue that his ri ghts to due process and fair trial were 16 denied when he was not arraigned on the ch arge in the second superceding grand jury 17 indictment within fifteen days of the indi ctment. [MIO 6; DS 11] In support of his 18 continued contention, Defendant relies on State v. Franklin , 1967-NMSC-151, 78 19 N.M. 127, 428 P.2d 982, and State v. Boyer , 1985-NMCA-029, 103 N.M. 655, 712 203 P.2d 1. [MIO 6] Our notice observed that De fendant’s challenge to the indictment was 1 untimely, and that the proper avenue for De fendant to have raised a challenge with 2 respect to the indictment was before trial, via an interlocutory appeal, as opposed to 3 a direct appeal. [CN 3] Defendant acknowledges this in his memorandum in 4 opposition. [MIO 6] As Defendant raises no new arguments, facts, or law in support 5 of his continued contention, we affirm for the reasons set forth in our notice. See State 6 v. Sisneros , 1982-NMSC-068, ¶ 7, 98 N.M. 201, 647 P.2d 403 (“The opposing party 7 to summary disposition must come forward and specifically point out errors in fact 8 and in law.”). 9 Sufficiency of the Evidence 10 {4} Defendant continues to argue that insufficient evidence was presented to 11 support any of his convictions, pursuant to FranklinandBoyer . [MIO 6] Our notice 12 detailed the evidence presented in support of each of Defendant’s convictions. [CN 13 3–10] In response, Defendant’s memorandum in opposition asks this Court to reweigh 14 the evidence presented [MIO 7] and re-evalutate the credibility of a witness, Mr. 15 Coultas. [MIO 10] We dec line Defendant’s invitation to do so, as that would be 16 contrary to the established principle thatan appellate court does not reweigh the 17 evidence or second-guess the jury’s decisi on regarding the credibility of witnesses. 18 See State v. Garcia , 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057; see also 19 State v. Foxen , 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 1071 (providing that 204 conflicts in the evidence, including conflicts in the testimony of witnesses, are to be 1 resolved by the fact finder; stating that the fact finder is free to reject the defendant’s 2 version of events). Accordingly, for the reasons stated here and detailed in our notice, 3 we conclude that there was sufficient evidence to uphold Defendant’s convictions. 4 Diminished Capacity 5 {5} Defendant continues to arguethat the district court erred by refusing to instruct 6 the jury on diminished capacity when there was evidence that Defendant’s BAC was 7 more than three times the legal limit. [MIO 10] In support of his continued contention, 8 Defendant relies upon Franklinand Boyer . [MIO 10] Our notice observed that 9 Defendant did not testify or present a defe nse, [RP 224] and the record proper did not 10 contain any evidence showing that Defendant’s intoxication rendered him incapable 11 of acting with intent. [CN 11] In res ponse, Defendant notes that testimony was 12 presented from Dr. Hwang that his BAC “was sufficient to render a person comatose.” 13 [MIO 10] However, Defendant’s memo randum in opposition does not provide that 14 any information was presented specific to Defendant’s inability to act intentionally, 15 and further, does not specify which crime Defendant sought to receive a diminished 16 capacity instruction on. See State v. Romero , 1998-NMCA-057, ¶ 26, 125 N.M. 161, 17 958 P.2d 119 (explaining that “mere evidence that the defendant consumed an 18 intoxicant is not enough[,]” but that evidence typically must come from “witnesses 19 who observed the defendant’s behavior and demeanor at or near the time of the 205 crime[,]” and “[f]rom this kind of evid ence a lay jury can apply common knowledge 1 and its own personal experien ce to assess the effects of intoxication on the defendant’s 2 ability to form the specific intent necessaryfor the crime charged”). We therefore 3 affirm for the reasons stated here and in our notice. 4 Ineffective Assistance of Counsel 5 {6} Defendant continues to argue that he received ineffective assistance of counsel. 6 [MIO 12] Defendant continues to argue this pursuant to Franklinand Boyer . [MIO 13] 7 Defendant acknowledges that th e record on direct appeal does not contain sufficient 8 information to address these claims on the merits. [MIO 13] As our notice observed, 9 habeas proceedings are the preferred vehicle to raise clai ms of ineffective assistance 10 of counsel where the record on direct appeal is inadequate for a full review. State v. 11 Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61; see also State v. Samora , 12 2013-NMSC-038, ¶ 23, 307 P.3d 328 (“Becausewe usually have insufficient 13 information before us to evaluate an ine ffective assistance clai m on direct appeal, as 14 in this case, this Court prefers that these claims be brought under habeas corpus 15 proceedings so that the defendant may actually develop the record with respect to 16 defense counsel’s actions.” (internal quotation marks and citation omitted)). We 17 affirm for the reasons stated above and in our notice. 18 Prosecutorial Misconduct 196 {7} Defendant continues to argue that the district court erre d by allowing the 1 prosecutor, at the sentencing hearing, to compare Defendant’s cas e to a murder case 2 in which the defendant received a life sentence, and also allowing the prosecutor to 3 use language throughout the trial that Defendant perceived to be prejudicial. [MIO 15; 4 CN 14; DS 11–12] Our notice observed that first, no objection was made at 5 sentencing, and second, Defendant failed to point this Court to any specific instances 6 of highly prejudicial language. [CN 14–15] Defendant provides no new factual or 7 legal arguments in response, and accordingly, we affirm. See Sisneros , 1982-NMSC8 068, ¶ 7 (“The opposing party to summary disposition must come forward and 9 specifically point out errors in fact and in law.”). 10 {8} For the reasons stated above and in th is Court’s notice of proposed disposition, 11 we affirm and remand to the district court for correction of the judgment and sentence. 12 {9} IT IS SO ORDERED. 13

__________________________________ 14 MICHAEL E. VIGIL, Chief Judge 15 WE CONCUR: 16

_________________________________ 17 JONATHAN B. SUTIN, Judge 18

_________________________________ 19 J. MILES HANISEE, Judge 20