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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 from 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. 30,581 4 JERRY KANT, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 7 Louis P. McDonald, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Jacqueline R. Medina, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Natalie Bruce 14 Albuquerque, NM 15 for Appellant 16

MEMORANDUM OPINION 17 CASTILLO, Chief Judge. 182 Defendant appeals from his conviction on two counts of battery with a deadly 1 weapon, stemming from a bloody brawl that broke out in the early morning hours of 2 August 9, 2008, at a home in Rio Rancho, New Mexico. Defendant raises seven 3 issues on appeal. We affirm. 4 BACKGROUND 5 Because both parties are familia r with the events in dispute, we review just the 6 basic facts here before proceeding to ourdiscussion. Defendant and three co7 defendants were charged with a number of offenses relati ng to a violent altercation 8 that occurred during a party held in the yard and driveway at the home of Robert 9 Montaño, one of four victims of the altercation. Guests at the party included Steve 10 Jimenez, Carlos Santiago, and Arnold Conejo . The clash started when co-defendant 11 Samuel Urioste and a friend rode up to the home on bicycles, engaged the partygoers 12 in conversation, and were each given a beer. Testimony conflicts as to whether 13 Samuel left and returned or immediately became involved in an altercation with some 14 of the four victims. Within about ten mi nutes, Samuel’s brother, Leondro Urioste, and 15 two friends, including Defendant, drove up tothe house, walked up the driveway, and 16 began fighting with the victims. The me lee involved the use of a set of brass 17 knuckles, a metal chair, the handle to a spri nkler system, and a gun. Robert’s wife, 18 Janet Gonzales, calle d 911, and she described some of the events to a police 193 dispatcher. Defendant and co-defendants eventually drove off with the seriously 1 injured Samuel in the front seat and thei r vehicle was stopped less than a half mile 2 from the scene. 3 Defendant was convicted of two counts of aggravated battery with a deadly 4 weapon, and he was acquitted of conspiracy. He raises seven issues on appeal. He 5 contends that the court erre d (1) in admitting photographs of the injured victims, (2) 6 in admitting the recording of a 911 call made by one of the victim’s wife, (3) in 7 admitting the brass knuckles allegedly used in the attack into eviden ce, (4) in rejecting 8 jury instructions on self-defense and the right to not retreat, (5) in denying a motion 9 for directed verdict as to the charge of aggravated battery with a deadly weapon, (6) 10 in denying a motion for directed verdict on the conspiracy charge, and he complains 11 (7) that he received ineffective assistance of counsel for his attorney’s failure to file 12 a motion to dismiss based on deficiencies inthe police investigation. We address his 13 arguments in order. 14 DISCUSSION 15 1. Admission of Photographs 16 Defendant first argues that the district court erred in allowing photographs of 17 two of the bruised and bloody victims tobe admitted into evidence because the 18 photographer, Arnold’s girlfrie nd Arlene, was not called totestify and help lay a 194 foundation for the photos. Preliminary questions on admissibility of evidence are 1 determined by the trial judge. SeeRule 11-104(A) NMRA. We review a district 2 court’s decision whether to admit or exclude evidence for abuse of discretion. Ruiz 3 v. Vigil-Giron , 2008-NMSC-063, ¶ 7, 145 N.M. 280, 196 P.3d 1286 (per curiam). 4 “For authentication of still photographs, the required foundation is that the 5 pictures fairly and accurately represent that which is shown by the pictures.” State v. 6 Thurman , 84 N.M. 5, 8, 498 P.2d 697, 700 (Ct. App. 1972). Such testimony is 7 sufficient for photographs to beadmitted into evidence. See State v. Foster , 82 N.M. 8 573, 575, 484 P.2d 1283, 1285 (C t. App. 1971). In Foster , the victim “testif[ied] that 9 each of the photographs fairly and accuratelyrepresented the things shown in the 10 photographs and fairly and accurately represented what he had described in his 11 testimony.” Id. The victim also did not know w ho took the photos or when they were 12 taken, and we concluded that testimony from the photographer was not required to 13 admit the photos into evidence. See id. In the case before us, Defendant cites no 14 statute, rule or case law from New Mexico to the contrary. At trial, Robert testified 15 as to the injuries allegedly caused by Defendant, and he identified the photographs 16 introduced into evidence as accurate depicti ons of the injuries he suffered. Such 17 testimony was sufficient to authenticate the photographs such that the district court 18 did not abuse its discretion in allowing them to be admitted into evidence. 195 2. Admission of 911 Recording 1 Defendant also contests the district court’s ruling to admit a recording of the 2 911 emergency call made to police by Robert’s wife, Janet, because the police 3 dispatch operator was not called to authenti cate the recording. We review for abuse 4 of discretion. Ruiz , 2008-NMSC-063, ¶ 7. 5 As noted in the previous section, a piece of evidence may be authenticated by 6 witness testimony that identifies the piece of evidence as being what its proponent 7 claims it to be. See Rule 11-901(A) NMRA (stating that the requirement of 8 authentication or identification as a condition precedent to admissibility is satisfied 9 by evidence sufficient to support a finding that the matter in question is what its 10 proponent claims). An opinion about a voi ce electronically recorded satisfies the 11 requirement of the rule. See Rule 11-901(B)(5). We have previously stated that the 12 “[i]dentification of a voice, whether heard firsthand or through mechanical or 13 electronic transmission or recording, can be made by opinion based on hearing the 14 voice at any time under circumstances conn ecting it with the alleged speaker.” State 15 v. Garcia , 110 N.M. 419, 425, 796 P.2d 1115, 1121 (Ct. App. 1990). 16 In the case before us, Janet testified that she spoke to a 911 dispatch operator 17 during the attack and gave the operator an eyewitness acc ount of what she was seeing, 18 including one co-defendant pointing a gun at her. Gonzales testified that she listened 196 to the CD recording of that 911 call and that the contents of the CD recording 1 accurately reflected the conversation she had with the police dispatcher during the 2 attack. The district court, citing Garcia , concluded that such testimony was sufficient 3 to satisfy Rule 11-901 because the testimony provided sufficient evidence to support 4 a finding that the recording was of what the State claimed it to be. We interpret Rule 5 11-901 the same way and cannot say that th e district court abused its discretion in 6 admitting the 911 recording. 7 On appeal, Defendant argues that in order for an audio recording to be admitted, 8 it must be shown that the recording device operated properly, thatthe operator of the 9 device was competent, and that the reco rding was not subsequently altered. See State 10 v. Baca , 82 N.M. 144, 146, 477 P.2d 320, 322 (Ct. App. 1970), overruled on other 11 grounds by State v. Jojola , 89 N.M. 489, 490, 553 P.2d 1296, 1297 (Ct. App. 1976). 12 The rule stated in Baca , however, predates by about fi ve years the evidentiary rule 13 governing the authentication and identificati on of an item of evidence. New Mexico’s 14 Rule 11-901 is based on Rule 901 of the Fe deral Rules of Evid ence that was enacted 15 in 1975. SeeFed. R. Evid. 901; Estate of Romero ex rel. Romero v. City of Santa Fe , 16 2006-NMSC-028, ¶ 8, 139 N.M. 671, 137 P.3d 611 (noting that “New Mexico Rules 17 of Evidence generally follow the federal ru les of evidence”). Further, the example 18 given at Rule 11-901(B)(9) allowing “[e]vidence describing a process or system and 197 showing that it produces an accurate result” tracks with the Bacareasoning and 1 merely provides an alternate way of authenti cating a recording. The district court’s 2 ruling fits comfortably within Rule 11-901 and did not constitute an abuse of 3 discretion. 4 3. Admission of Brass Knuckles 5 Defendant next argues that the district court erred in admitting into evidence the 6 brass knuckles allegedly used by Defendant during the altercation. He contends that 7 proper police procedure was not followed, in cluding gaps in the chain of custody. He 8 postulates that the set of brass knuckles presented as evidence may have been different 9 from that found at the scene of the crime or that the evidence might have been 10 tampered with. As above, we review the court’s decision whether to admit or exclude 11 evidence for abuse of discretion. Ruiz , 2008-NMSC-063, ¶ 7. We will find no abuse 12 of discretion when the state shows by a preponderance of the evidence that the item 13 of evidence is what it purports to be. See State v. Peters , 1997-NMCA-084, ¶ 26, 123 14 N.M. 667, 944 P.2d 896. 15 “In order to admit real or demonstrativ e evidence at trial, the item of evidence 16 in question must be identified, either vi sually or by establishing the custody of the 17 object from the time it was seized to th e time it is offered in evidence.” State v. 18 Chavez , 84 N.M. 760, 761, 508 P.2d 30, 31 (Ct. App. 1973). The state need not 198 establish the chain of custody with such precision as to exclude all possibility of 1 tampering. See Claridge v. N.M. State Racing Comm’n , 107 N.M. 632, 641, 763 P.2d 2 66, 75 (Ct. App. 1988). Any questions about a gap in the chain of custody when 3 handling evidence goes to the weight of the evidence and not to its admissibility. Cent. 4 Sec. & Alarm Co. v. Mehler , 1996-NMCA-060, ¶ 30, 121 N.M. 840, 918 P.2d 1340. 5 Here, a police officer provided both a visu al identification of the brass knuckles 6 and vouched for its journey through the chain of custody. Officer Brown testified that 7 he found the brass knuckles covered in what appeared to be blood stains on the other 8 side of a wall running along the property wh ere the fight occurr ed. Officer Brown 9 testified that the set of brass knuckles presented before the court was the same item 10 he collected and photographed at the scene during the morning of the altercation, 11 including similar blood stains. In addition to visually identifying the object, Officer 12 Brown described the procedure used to secu re the evidence. He testified that he 13 photographed the set of brass knuckles after finding it, placed it in a paper bag, sealed 14 the bag with evidence tape, labeled the bag with the case number and the date, and 15 logged the bag into an evidence container at the Rio Rancho Police Department. Just 16 before trial, Officer Brown te stified that he had retrieve d the still-sealed bag from the 17 evidence custodian, broken the seal, and identified the brass knuckles as the same item 18 he had discovered at the scene. 199 The State presented a substantial amount of evidence linking the item found at 1 the scene with the one presented at court. After hearing Officer Brown’s testimony, 2 the district court admitted the evidence. We conclude that, based on the evidence 3 presented in the form of Officer Brown’s testimony, the district court did not abuse 4 its discretion in finding that the State ade quately established that the item presented 5 in court met the threshold for admissibility. 6 4. Jury Instruction on Self-Defense and Retreat 7 Defendant next argues that the district court erred in denyi ng his request for a 8 jury instruction on self-defense and the ri ght of a combatant to not retreat. “The 9 propriety of denying a jury in struction is a mixed question of law and fact that we 10 review de novo.” State v. Boyett , 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 11 (internal quotation marks and citation omitted). 12 Before analyzing the merits of this issu e, we first address the State’s argument 13 that Defendant failed to preserve this issue for appeal. In general, we will decline to 14 review a court’s denial of a request for a jury instruction if the issue has not been 15 preserved through submitting such a request and objecting to the denial of the request. 16 See State v. Badoni , 2003-NMCA-009, ¶ 7, 133 N.M. 257, 62 P.3d 348. Our rules 17 state that “[t]o preserve a question for revi ew it must appear that a ruling or decision 18 by the district court was fairly invoked.” Rule 12-216(A) NMRA; see also Schuster 1910 v. State Dep’t of Taxation & Revenue, Motor Vehicle Div. , 2012-NMSC-025, ¶ 33, 1 283 P.3d 288. Exceptions are allowed for matters of general public interest or for 2 fundamental error. SeeRule 12-216(B). We have recen tly stated that reasons behind 3 the rule are: 4 (1) to specifically alert the district c ourt to a claim of error so that any 5 mistake can be corrected at that time, (2) to allow the opposing party a 6 fair opportunity to respond to the cl aim of error and to show why the 7 district court should rule against that claim, and (3) to create a record 8 sufficient to allow this Court to make an informed decision regarding the 9 contested issue. 10 Kilgore v. Fuji Heavy Indus. Ltd. , 2009-NMCA-078, ¶ 50, 146 N.M. 698, 213 P.3d 11 1127. 12 In the case before us, there is no eviden ce that Defendant objected to the district 13 court’s refusal to allow a jury instruction for self-defense and the right to not retreat 14 as to Defendant. A review of the discussion of jury instruc tions before the court at the 15 end of the penultimate day of trial reveals the following events. 16 The issue of a self-defense instruction was first brought up by the State, which 17 explained that it had received from co -defendant Samuel UJI 14-5190 NMRA, an 18 instruction on the right to not retreat. The court first addressed the threshold issue of 19 Samuel’s right to self-defense and noted that“there is really not any evidence of self20 defense.” The court later st ated: “So it doesn’t sound like he’s really got a self21 defense argument.” The court rejected the UJI but then moved on to entertain a jury 2211 instruction for the other three co-defendants for defense of another. The court 1 appeared to confuse self-defense with th e defense of another and stated the opposite 2 of what it intended: “I’ll allow the sel f-defense suggested earlier in your elements 3 instruction and the statement in the instruction I’m allowing on self-defense, but 4 there’s not a defense of another.” Defe ndant’s attorney recognized the confusion 5 because he immediately gave the court a copy of an instruction for defense of another, 6 and the court promptly asked the State if it objected to the instruction for defense of 7 another. The parties proceeded to debate whether the instruction for defense of 8 another should include the version that invol ves a response with deadly force. When 9 the parties finally agreed on a version of th e instruction for defe nse of another, the 10 court announced that it would allow UJ I 14-5182 NMRA, the version of the 11 instruction for defense of another that does not mention deadly force. 12 The court then moved on to the propriety of an instruction for the right to not 13 retreat, UJI 14-5190 that was agreed to by the State. In attempting to clarify the actual 14 language to be used in the instruc tion, the following exchange occurred: 15 Court: But [UJI 14-5190] needs to be modified to indicate it’s the 16 defense of another. Do you have obj ection to that from . . . defense 17 counsel? 18 [Defendant’s Counsel]: No, [y]our honor. 19 A few moments later, Defendant’s counsel summed up the agreement among the 20 parties: 2112 [Defendant’s Counsel]: I think just self-defense to the defense of, 1 not the defense of another. So I th ink it’s not—there is a no for the three 2 of us. We can’t say self-defense . It would be the defense of another. 3 Court: Defense of another is just like self-defense, only that 4 you’re going to the rescue of someone else. 5 [Defendant’s Counsel]: I understand that. 6 (Emphasis added.) The court eventually re jected an instruction for the right to not 7 retreat following this exchange: 8 Court: You’re saying everybody is agreeing a person who is 9 threatened with an attack need not retreat. I don’t think that even really 10 applies in this situation. 11 [Defendant’s Counsel]: I agree. I think it’s self-defense. 12 Court: That’s not coming in either

. 13 [Defendant’s Counsel]: Right. 14 Court: We’ll not give either [sel f-defense or right to not retreat]. 15 We’ll just give [UJI] 14-5182 [defense of another]. 16 [Defendant’s Counsel]: Right. I think those [rejected instructions] 17 go to self-defense, not defense of another. 18 Court: Right 19 [Defendant’s Counsel]: Right. 20 (Emphasis added.) 21 It is clear from context that the court re jected jury instructions on self-defense 22 and the right to not retreat. At no time di d Defendant’s counsel object to the court’s 23 ruling. In fact, Defendant’s counsel expre ssed agreement with the court’s ruling. The 24 court eventually allowed a jury instruc tion on behalf of Defe ndant for defense of 25 another. No instruction was given for se lf-defense or the right to not retreat. 26 We conclude that Defendant concurred as the districtcourt sorted out the jury 2713 instructions and did not object when the c ourt eventually chose the instruction for 1 defense of another, rejecting the instruc tions for self-defense and the right to not 2 retreat. In fact, Defendant’s counsel ne ver argued that Defendant was entitled to a 3 self-defense instruction, and a self-d efense instruction was not included among 4 Defendant’s requested jury instructions. In sum, Defendant abandoned any claim to 5 the request for a self-defense instruction firs t noted by the State before the court or for 6 an instruction on the right to not retreat, and his argument fails all three prongs of the 7 Kilgoretest: Defendant’s counsel failed to argue in favor of either jury instruction 8 and thus invoke a ruling by the court, oppos ing counsel was not given an opportunity 9 to argue the merits of the jury instructi ons, and the record is not fully developed on 10 the matter. 2009-NMCA-078, ¶ 50. We conclude that De fendant failed to preserve 11 this argument, and we decline to address it. 12 As to the jury instruction for the right to not retreat, we further note that the trial 13 court was not required to give this instruction because the giving of UJI 14-5190 is 14 premised on a claim of self-defense. See State v. Nozie , 2007-NMCA-131, ¶ 14, 142 15 N.M. 626, 168 P.3d 756 (rejecting the defendant ’s claim that he was entitled to UJI 16 14-5190 where he did not put self-defense at issue). 17 5. Directed Verdict for Aggravated Battery With a Deadly Weapon 18 Defendant contends that the districtcourt erred in denying his motion for 1914 directed verdict as to aggravated batterywith a deadly weapon, because no witness 1 sufficiently linked the two weapons invol ved during the attack—brass knuckles and 2 a metal chair—to Defendant. A directed verdict is a drastic measure that is generally 3 disfavored in that it threatens to interferewith the jury’s function and one’s right to 4 a trial by jury. See Perez v. City of Albuquerque , 2012-NMCA-040, ¶ 7, 276 P.3d 5 973. A trial court should not grant a motion for directed verdict unless it is clear that 6 “the facts and inferences are so strongly and overwhelmingly in favor of the moving 7 party that the judge believes that reasonable people could not arrive at a contrary 8 result.” Melnick v. State Farm Mut. Auto. Ins. Co. , 106 N.M. 726, 729, 749 P.2d 9 1105, 1108 (1988). “Any conflicts in the eviden ce or reasonable interpretations of the 10 evidence are viewed in favor of the party resisting the directed verdict.” Sunwest 11 Bank of Clovis, N.A. v. Garrett , 113 N.M. 112, 115, 823 P.2d 912, 915 (1992). “We 12 review de novo the district court’s decisions on the motions for directed verdict.” 13 Perez , 2012-NMCA-040, ¶ 7. Specifically, our inquiry “asks whether sufficient 14 evidence was adduced to support the underlying charge.” State v. Sena , 15 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198. 16 In the case before us, the district court found sufficient evidence of a link 17 between Defendant and a weapon to send the question to the jury. “The test for 18 sufficiency of the evidence is whether s ubstantial evidence of either a direct or 1915 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt 1 with respect to every element essential to a conviction.” Id. (internal quotation marks 2 and citation omitted). “Substantial eviden ce is such relevant evidence that a 3 reasonable mind would find adequate to support a conclusion.” Landavazo v. 4 Sanchez , 111 N.M. 137, 138, 802 P.2d 1283, 1284 ( 1990). The State was required to 5 prove that Defendant touche d or applied force to Arnold or Carlos with the brass 6 knuckles or metal chair with the intent to injure them. SeeUJI 14-322 NMRA. 7 Defendant contends that neith er of those two victims de scribed actually seeing brass 8 knuckles or a metal chair in Defendant ’s possession and that witnesses instead 9 suggested that others wielded the weapons . Defendant also hypothesizes that one of 10 the victims may have used the set of brass knuckles that were found at the spot where 11 Carlos hopped over the wall along the property. 12 The State presented witness testimony th at offered evidence of an attack by 13 Defendant with a weapon. Robert testifie d that Defendant hit him in the face with 14 what felt like a brick, and th en he saw Defendant attack Arnold. Arnold testified that 15 Defendant hit him in the face with a sh arp object. Officer Brown found the set of 16 brass knuckles at the scene and noted that the victims’ injuries were the result of 17 blows that were landed with more than just hands and fists. Robert testified that he 18 saw Defendant pick up the chair and move toward Carlos intending to hit him on the 1916 head with it. Carlos testified that he saw an object coming at him from above and that 1 he raised his arm to block it and blunt its imp act. He also testified that he was hit with 2 a punch that seemed like it was more than justa fist. In addition to the set of brass 3 knuckles, a metal chair was found at the s cene by police. The evidence presented by 4 the State was substantial enough to convin ce a reasonable juror that Defendant had 5 attacked at least two of the victims with either brass knuckles or a metal chair. Cf. 6 Landavazo , 111 N.M. at 138, 802 P.2d at 1284 (“Ev idence is substantial even if it 7 barely tips the scales in favor of the party bearing the burden of proof.”). We are not 8 swayed by the fact that Defendant posits plausible alternative theories and 9 explanations. See Las Cruces Prof’l Fire Fighters v. City of Las Cruces , 1997- 10 NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177 (“The question is not whether 11 substantial evidence exists to support th e opposite result, but rather whether such 12 evidence supports the result reached .”). Therefore, we conclude that the district court 13 did not abuse its discretion in denying Defendant’s motion for a directed verdict on 14 the charge of aggravated battery with a deadly weapon. 15 6. Directed Verdict for Conspiracy 16 Defendant also argues that there was insufficient evidence to support the count 17 of conspiracy and that therefore his mo tion for directed verdict should have been 18 granted. The State argues that, because Defendant was acquitted of the charge of 1917 conspiracy, the issue is moot. 1 We focus on the question of mootness. “A reviewing court generally does not 2 decide academic or moot questions,” Crutchfield v. N.M. Dep’t of Taxation & 3 Revenue , 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273, and “[a] case will be 4 dismissed for mootness if no actual controversy exists.” City of Las Cruces v. El Paso 5 Elec. Co. , 1998-NMSC-006, ¶ 16, 124 N.M. 640, 954 P.2d 72. However, an appellate 6 court may address such a case on the merits if it presents issues that are of substantial 7 public interest or are capable of repetition yet evading review. Cobb v. State 8 Canvassing Bd. , 2006-NMSC-034, ¶ 14, 140 N.M. 77, 140 P.3d 498. The issue of 9 mootness is a jurisdictional ques tion that we review de novo. See Garcia v. Dorsey , 10 2006-NMSC-052, ¶ 13, 140 N.M. 746, 149 P.3d 62; In re Qwest Commc’ns Int’l, Inc. , 11 2002-NMSC-006, ¶ 3, 131 N.M. 770, 42 P.3d 1219. 12 Defendant’s main argument against mootness is that we have the ability to grant 13 a new trial on only the two count s of aggravated battery w ith a deadly weapon, which 14 would offer him a chance to adjust his trial strategy without the potential for a 15 conspiracy conviction. Defendant does not complain that the State had no basis to 16 bring the charge of conspiracy in the fi rst instance—merely that the State had not 17 proved its case. Either way, because we affirm the district court on all counts and do 18 not grant a new trial on any issue, Defendant ’s argument has no merit. We also do not 1918 find Defendant’s conviction for conspiracy to present us w ith an issue of substantial 1 public interest; nor is it one capable of repetition yet evading review. We conclude 2 that the issue is moot, and we therefore do not address the question of whether a 3 directed verdict was proper. 4 7. Ineffective Assistance of Counsel 5 Finally, Defendant contends that he received ineffective assistance of counsel 6 because his attorney failed to file a moti on to dismiss based on alleged deficiencies 7 in the investigation of the crime scene by po lice officers. “Questions of ineffective 8 assistance of counsel are reviewed de novo.” State v. Joanna V. , 2003-NMCA-100, 9 ¶ 11, 134 N.M. 232, 75 P.3d 832, aff’d, 2004-NMSC-024, 136 N.M. 40, 94 P.3d 783. 10 In general, assistance of counsel is presumed to be effective. See State v. 11 Jacobs , 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. To establish a prima 12 facie case of ineffective a ssistance of counsel, a defendant has the burden of proving 13 that (1) his attorney’s performance fell belo w that of a competent attorney and (2) he 14 was prejudiced by that deficient performance. State v. Hester , 1999-NMSC-020, ¶ 9, 15 127 N.M. 218, 979 P.2d 729. In reviewing wh ether a defendant has met the burden 16 of establishing such a prima facie case, we will not second-guess the trial tactics of the 17 attorney. Id. ¶ 11. We note that our Supreme C ourt has stated that “habeas corpus 18 proceedings are the preferred avenue for ad judicating ineffective assistance of counsel 1919 claims, because the record be fore the trial court may not adequately document the sort 1 of evidence essential to a determinati on of trial counsel’s effectiveness.” State v. 2 Grogan , 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (alteration, internal 3 quotation marks, and citation omitted). 4 Defendant focuses his argument on deficien cies in the police investigation and 5 claims that his attorney wa s incompetent for failing to file a motion to dismiss based 6 on those grounds. Defendant contends thatthe police investigation was deficient 7 because officers (1) conducted a prejudicial s how-up identification, (2) did not test the 8 alcohol level of the victims, (3) faile d to conduct DNA testing of the blood on the 9 brass knuckles, (4) failed to gather fi ngerprint evidence, (5) never reviewed 10 Defendant’s cellular phone records, (6) failed to search for evidence of alcohol 11 containers in the garbage, and (7) failed toinvestigate additional witnesses. Defendant 12 argues that, because of this deficient inves tigation, he was entitled to dismissal of the 13 charges pursuant to State v. Ware , 118 N.M. 319, 881 P.2d 679 (1994), which 14 provides a remedy for defendants prejudi ced by law enforcement’s failure to 15 adequately collect materialevidence at a crime scene. 16 In Ware , the Court articulated a two-part test for determining whether the 17 State’s failure to collect evidence deprives a defendant of a fair trial: 18 The first factor is whether the evidence is relevant, material, or important 19 to the defense, as opposed to extran eous or duplicative of other evidence. 2020 The second factor goes to the characterof the officers investigating the 1 crime scene—whether they acted ingood faith, bad faith, or negligently 2 when deciding not to gather the sp ecific evidence at the crime scene. 3 Id. at 325, 881 P.2d at 685 (citations omitted). As to the first prong, evidence is 4 considered material “only if there is a reasonable probability that, had the evidence 5 been available to the defense, the result of the proceeding would have been different.” 6 Id. (alteration, internal quotations marks, and citations omitted). As to the second 7 prong, a court must determine whether law enforcement’s failure to collect evidence 8 was done in bad faith or was the result of the officers’ gross negligence. See id. 9 “When the failure to gather evidence is merely negligent, an oversight, or done in 10 good faith, sanctions are inappropriate[.]” Id. 11 The question before us is whether De fendant’s counsel was ineffective for 12 failing to pursue a motion to dismiss under Warebased on the seven allegations noted 13 above. We first note, as the State points out, that fi ve of Defendant’s 14 allegations—relating to the failure to c onduct a lineup, test th e blood sample for DNA, 15 check the brass knuckles collected at the scene for fingerp rints, pull the phone records 16 of the co-defendants, and pursue other w itnesses for questioning—have nothing to do 17 with collecting evidence at th e scene but rather go to the investigation’s procedures. 18 None of those aspects of the investigation fall under the Wareanalysis. See State v. 19 Chandler , 119 N.M. 727, 735, 895 P.2d 249, 257 (Ct. App. 1995) (stating that failing 2021 to file a motion that would prove futile does not constitute ineffective assistance of 1 counsel), modified on other grounds by State v. Vargas , 2007-NMSC-006, 140 N.M. 2 864, 149 P.3d 249. We now turn to the two remaining allegations. 3 Defendant faults the officers for not s earching trash bins for further evidence. 4 However, he offers no details and makes no argument as to how such evidence would 5 have been relevant or materialto his defense or whether o fficers’ failure to search the 6 trash bins may have been an act of bad faith or gross negligence. We will not make 7 Defendant’s argument for him. See Headley v. Morgan Mgmt. Corp. , 8 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P. 3d 1076 (“We will not review unclear 9 arguments, or guess at what [a party’s] arguments might be.”). 10 Finally, Defendant notes that police faile d to test the blood-alcohol content of 11 the victims. Officer Brown testified th at two of the victims suffered “massive 12 injuries” and needed to be taken to the hospital immediately, which made it 13 implausible to photograph the victims let alonehold them to perform blood tests. And 14 while the other two victims were not in n eed of hospital care, officers at the scene 15 noted that both men had been drinking and appeared to be intoxicated, and 16 photographs were taken of beer cans strewn on the property. It is questionable that 17 a blood-alcohol test would be material to th e issue of the credibility of the victims or 18 change the outcome of the case, considering the abundance of evidence of drinking 1922 at the party and the admission by the victims who testified that they had been drinking 1 as early as 2:00 p.m. the day before the fight broke out in the early morning hours of 2 August 9, 2008. Even if a blood-alcohol test were deemed to be material to the 3 investigation, Defendant can point to no evidence that the officers’ decision not to test 4 the victims’ blood-alcohol leve ls was a result of bad faith or gross negligence. The 5 strategy of Defendant’s attorney to opt against a motion for dismissal based on the 6 failure to search trash bins and or to perform blood tests on th e victims does not rise 7 to the level of ineffective assistance of counsel. 8 III. CONCLUSION 9 For the foregoing reasons, we affirm Defendant’s conviction. 10 IT IS SO ORDERED. 11

__________________________________ 12 CELIA FOY CASTILLO, Chief Judge 13 WE CONCUR: 14

__________________________________ 15 JAMES J. WECHSLER, Judge 16

__________________________________ 17 MICHAEL D. BUSTAMANTE, Judge 18