This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 30,514 9 MICHAEL DAVID RIVERA, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 John A. Dean, Jr., District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 Jacqueline R. Medina, Assistant Attorney General 16 Albuquerque, NM 17 for Appellee 18 Jacqueline L. Cooper, Acting Chief Public Defender 19 Allison H. Jaramillo, Assist ant Appellate Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 WECHSLER, Judge. 242 Defendant Michael Rivera appeals his conviction for aggravated driving while 1 under the influence of an intoxicating liquor (DWI) in violation of NMSA 1978, 2 Section 66-8-102(A), (D)(3) (2008) (amended 2010) . Defendant raises five issues on 3 appeal: whether (1) the district court erred in permitting the State to introduce 4 testimonial statements of a non-testifying forensic analyst through the in-court 5 testimony of a supervisor, who did not perform or observe the laboratory analysis 6 described in the statements; (2) the district court erred in finding that reasonable 7 suspicion justified the officer in stopping De fendant’s vehicle; (3) the district court 8 erred in not finding the traffic stop pretextual; (4) the State presented sufficient 9 evidence to convict Defendant of DWI; and (5) Defendant did not receive effective 10 assistance of counsel. We affirm. 11 BACKGROUND 12 On March 13, 2009, at approximately 11:30 pm, Officer TJ Brown, who had 13 been with the Bloomfield Police Department for seven years, was on routine patrol in 14 Bloomfield, New Mexico. While on patrol, he observed a vehicle with two occupants 15 driving through a neighborhood on North First Street. Officer Brown’s attention was 16 drawn to the vehicle because (1) it pulle d into the apartment complex with two 17 occupants and then got back onto the road w ith two people still in the vehicle; (2) the 18 vehicle was traveling about five miles an hour under the speed limit, whereas most 193 people drove over the speed limit on that road ; and (3) the vehicle was weaving within 1 its lane. Officer Brown suspected the driver of the vehicle to be driving while under 2 the influence. Officer Brown testified that he noticed the vehicle driving through a 3 neighborhood on a road that ran parallel to U.S. 64, the main road through town, 4 instead of taking U.S. 64. In Officer Brown’s experience, people avoid using the main 5 road in an effort to avoid coming into contact with him. 6 Officer Brown knew that Officer Mich ael Carey was on duty in Aztec, the 7 adjacent city, and called him on his cell phoneand told him that he was following a 8 suspicious vehicle. Officer Brown was c oncerned, but he wanted more than just 9 reasonable suspicion to support a traffic stop. Officer Brown followed the vehicle in 10 a police-issued unmarked Ford Expedition for about three miles. When he reached 11 Aztec, he saw Officer Carey and signaled to him that they were approaching. Officer 12 Brown pulled into the median to turnaround. As he was doing so, he saw 13 Defendant’s vehicle swerve halfway over the white line and into the shoulder of the 14 road. Officer Brown told Officer Carey wh at he had just observed. Officer Brown 15 activated the camera on his vehicle, but th e lighting conditions and the road grade 16 were such that one could not distinguish the white line and the vehicle on the video 17 recording. 18 Officer Carey testified that his duties were to patrol the city, to investigate 194 crimes, and to make traffic stops for infrac tions. Officer Carey was in a marked patrol 1 unit, wore his full uniform, and displayed his badge of office. Officer Carey testified 2 that on the evening of Marc h 13, 2009, Officer Brown calle d him and told him that he 3 had observed a suspicious vehicle and that it had crossed the white line. Officer Carey 4 stopped the vehicle for crossing the white lin e. Officer Carey a pproached the driver 5 side of the vehicle and immediately sme lled alcohol coming from within the vehicle. 6 Defendant claimed that he had not beendrinking. Officer Carey observed that 7 Defendant had watery eyes and slightly slurred speech. He testified that he had 8 received training in DWI investigations, in cluding the administration of field sobriety 9 tests, and had conducte d over one hundred DWI investigati ons. He administered three 10 tests to Defendant: the one-leg stand te st; the walk-and-turn test; and the finger 11 dexterity test. He did not believe that he asked Defendant if he had any physical 12 disabilities that would impair his ability to perform the tests. He testified that 13 Defendant appeared to have a lazy eye. According to Officer Carey, Defendant failed 14 to properly perform the walk-and- turn test in that he did not count aloud, did not touch 15 heel to toe, stopped on the ninth step of the te st, had to be told to turn and return, and 16 stepped off the line. He testified thatduring the one-leg stand test Defendant 17 exhibited two signs of intoxication: he used his hands for balance and put his foot 18 down after beginning the test. During two of the three times that the officer had 195 Defendant perform the finger dexterity test, Defendant did not count correctly and 1 then did not correctly count with the designated finger. 2 Based on Defendant’s physical appearance, the strong odor of alcohol, and his 3 performance on the field sobriety tests, Officer Carey placed Defendant under arrest 4 for DWI. Officer Carey advised Defendant of the Implied Consent Act (ICA) 5 advisory. Defendant refused to give a breath sample and began to argue with Officer 6 Carey. Officer Carey obtained a search warrant for a sample of Defendant’s blood 7 and transported Defendant to the hospital. Defendant stated that he was not going to 8 let them take his blood and would fight them . Defendant resistedthe nurse’s efforts 9 to insert the needle for the drawing of th e blood sample and resisted even more when 10 an assisting officer tried to hold him. O fficer Carey threatened to use his taser and 11 Defendant then allowed the blood sample to be drawn. 12 CONFRONTATION CLAUSE AND FUNDAMENTAL ERROR 13 Defendant argues that the admission of Form 705 of the New Mexico 14 Department of Health Scientific Laboratory Division (SLD) into evidence violated his 15 rights under the confrontation clause. He asserts on appeal that his timely hearsay 16 objection was sufficient to preserve this ar gument. Alternatively, Defendant argues 17 that the admission of Form 705 rose to the level of fundamental error. 18 “To preserve a question for review[,] it mu st appear that a ruling or decision by 196 the district court was fairly invoked.” Rule 12-216(A) NMRA. An objection must be 1 made with “sufficient specificity to alert the mind of the trial court to the claimed 2 error” to invoke the ruling of the court upon a question or issue. State v. Lopez , 84 3 N.M. 805, 809, 508 P.2d 1292, 1296 (1973). De fendant’s objections regarding the 4 admission of Form 705 into evidence, while timely, were insufficient in terms of 5 specificity. 6 At trial, the State called Gerasimos Razatos, who works for the SLD 7 Toxicology Bureau as a drug screening superv isor. The district court recognized him 8 as an expert. Razatos testified that in thisparticular case he wa s also the reviewer of 9 the blood alcohol analysis performed by Amy Egbert, that he double checked 10 everything to make sure that all standard operating procedures were followed, and that 11 there were no transcription errors. Razatos testified that he then signed off on the 12 form to indicate that the work was performed in accordance with laboratory 13 regulations. The State moved Form 705 into evidence, and Defendant objected on 14 hearsay grounds. The court overruled the objection. 15 Defendant did not base his objection on confrontation clause grounds, and, 16 instead, he objected to the testim ony at issue on hearsay grounds. In State v. Lucero , 17 104 N.M. 587, 591, 725 P.2d 266, 270 (Ct. App. 1986), we held that the defendant did 18 not preserve a confrontation clauseissue by objecting on hearsay grounds. See State 197 v. Silva , 2008-NMSC-051, ¶ 10, 144 N.M. 815, 192 P.3d 1192 (holding that a 1 confrontation clause claim will not be pres erved for appeal unless the objection during 2 trial is made with sufficient specificity). Therefore, Defendant’s hearsay objection did 3 not properly preserve his confrontation clause issue, and we review only for 4 fundamental error. See id. ¶ 11. 5 “A fundamental error occurs where there has been a miscarriage of justice, the 6 conviction shocks the consci ence, or substantial justice has been denied.” State v. 7 Dietrich , 2009-NMCA-031, ¶ 52, 145 N.M. 733, 204 P.3d 748. This Court may also 8 “conclude that a fundamentalerror has been committed upon a determination that a 9 trial court’s error was of such magnitudethat it affected the trial outcome.” Id. 10 (internal quotation marks and citation omitte d). The jury found Defendant guilty of 11 aggravated DWI under an impairment theory . To support Defendant’s conviction, the 12 State presented evidence demonstrating thatDefendant’s driving was impaired such 13 that he was driving under the speed limit, weav ing within his lane and out of his lane; 14 he smelled strongly of alcohol; his eyes were watery; his speech was slurred; he had 15 poor balance during the field sobriety tests; he was unable to follow the field sobriety 16 test instructions; he refused to comply w ith the ICA; and he was combative at the 17 hospital. Based on this evidence, we cannot say that Defendant’s conviction 18 “shock[ed] our conscience,” and, therefore, we decline to conclude that a fundamental 198 error has occurred. See id. 1

REASONABLE SUSPICION AND PRETEXTUAL STOP 2 Standard of Review 3 Defendant argues that the district court erred by denying his motion to suppress 4 the evidence obtained as a result of the traffic stop arguing that both officers lacked 5 reasonable suspicion at the in ception of the stop, or, altern atively, that if reasonable 6 suspicion existed, the stop was pretextual under State v. Ochoa ( Ochoa II ), 2009- 7 NMCA-002, 146 N.M. 32, 206 P.3d 143. 8 Because suppression of evidence is a mixe d question of law and fact, we apply 9 a two-part review to a district court’s decision regarding a motion to suppress. See 10 State v. Jason L. , 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856. We determine 11 “whether the law was correctly applied to the facts, viewing them in a manner most 12 favorable to the prevailing party.”Id. (internal quotation mark s and citation omitted). 13 In doing so, we defer to the district court’ s findings of facts to the extent they are 14 supported by substantial evidence. Id. We “review the application of the law to these 15 facts, including determinations of reasona ble suspicion, under a de novo standard of 16 review.” State v. Patterson , 2006-NMCA-037, ¶ 13, 139 N.M. 322, 131 P.3d 1286. 17 Reasonable Suspicion 189 Defendant argues that Officer Brown admitted that he did not see any traffic 1 violations for the entire time he followe d Defendant through Bloomfield and it was 2 not until Office Brown was turning around as Defendant approached Aztec, that he 3 saw Defendant’s vehicle swerve half way out of its lane of traffic and onto the 4 shoulder of the road. Defendant notes th at the jury found Officer Brown’s testimony 5 was not credible, because it ac quitted Defendant of the failureto maintain traffic lane 6 charge. Finally, Defendant asserts that Offi cer Carey, the arresting officer, did not see 7 any violation whatsoever. Thus, according to Defendant, both officers lacked 8 reasonable suspicion to justify the seizure of Defendant, and the district court should 9 have suppressed the evidence illegally gained from this stop. 10 Defendant was “seized” at the mo ment when Officer Carey stopped 11 Defendant’s vehicle. See State v. Duran , 2005-NMSC-034, ¶ 33, 138 N.M. 414, 120 12 P.3d 836 (holding that “[o]nce a motorist is stopped, he or she is seized under the 13 Fourth Amendment because his or her freedom is curtaile d by official police action”), 14 overruled on other grounds by State v. Leyva , 2011-NMSC-009, 149 N.M. 435, 250 15 P.3d 861. We therefore address whether the officer had reasonable suspicion to seize 16 Defendant at the inception of the stop. See Duran , 2005-NMSC-034, ¶ 34. 17 An “[i]nvestigatory detention is permissible when there is a reasonable and 18 articulable suspicion that the law is being or has been broken.” Jason L. , 2000- 1910 NMSC-018, ¶ 20 (internal quotation marks and citation omitted). Reasonable 1 suspicion is defined as “a particularized suspicion, base d on all the circumstances that 2 a particular individual, the one detained, is breaking, or has broken, the law.” Id. 3 “Reasonable suspicion must be based on sp ecific articulable facts and the rational 4 inferences that may be drawn from those facts.” State v. Flores , 1996-NMCA-059, 5 ¶ 7, 122 N.M. 84, 920 P.2d 1038. “Unsupporte d intuition and inarticulable hunches 6 are not sufficient.” Jason L. , 2000-NMSC-018, ¶ 20 (internal quotation marks and 7 citation omitted). 8 Looking at the totality of the circumstan ces, Officer Brown had a particularized 9 suspicion that Defendant was breaking, or had broken, the law at the inception of the 10 traffic stop. Our Supreme Court has statedthat a police officer may stop a vehicle if 11 the officer has an objectively reasonable susp icion that the motorist has violated a 12 traffic law. State v. Vandenberg , 2003-NMSC-030, ¶ 21, 134 N.M. 566, 81 P.3d 19. 13 In this case, Officer Brown’s observation of Defendant’s vehicle swerving half way 14 out of its lane of traffic and onto the shoul der of the road supported a reasonable belief 15 that the driver failed to maintain his lane, contrary to NMSA 1978, Section 66-7-317 16 (1978). Officer Brown immediately reporte d his observation of Defendant’s traffic 17 violation to Officer Carey. Officer Careyrelied on Officer Brown’s observation and 18 stopped Defendant for driving out of his lane of traffic. Officer Carey’s stop of 1911 Defendant was reasonable because an offi cer may reasonably rely on information 1 from another officer that a crime ha s been, or is being, committed. State v. Ochoa 2 ( Ochoa I ), 2008-NMSC-023, ¶ 21, 143 N.M. 749, 182 P.3d 130. Defendant’s 3 weaving within his lane of traffic, driving under the speed limit, avoiding the main 4 thoroughfare through Bloomfield, and driving half way over the white line also 5 provided the officers with reasonable suspicion to believe that as a result of 6 consuming alcohol or drugs, Defendant was le ss able to the slightest degree to safely 7 operate a vehicle. See § 66-8-102(A). 8 Thus, at the point Defendant was sei zed, Officer Brown already had observed 9 specific articulable facts that, when view ed objectively, would lead to reasonable 10 suspicion that Defendant had broken th e law based on observing a traffic code 11 violation and suspicion of DWI. State v. Hubble , 2009-NMSC-014, ¶ 35, 146 N.M. 12 70, 206 P.3d 579 (holding that reasonable suspicion existed for a traffic stop when the 13 officer had observed the defendant violate the turn signal statute); Vandenberg , 2003- 14 NMSC-030, ¶ 21 (stating that reasonable susp icion existed for a traffic stop based on 15 the defendant’s speeding ina construction zone); State v. Prince , 2004-NMCA-127, 16 ¶ 11, 136 N.M. 521, 101 P.3d 332 (determining th at reasonable suspicion existed for 17 a traffic stop when the officer observed th e defendant driving in excess of the speed 18 limit). 1912 Pretextual Stop 1 Defendant also contends that the traffic stop was illegal because it was 2 pretextual under Ochoa II . He argues that Officer Brown “wanted to launch a DWI 3 investigation, and used the failure to maintain traffic lane as the means to do so.” The 4 district court concluded that Officer Brown’s decision to initiate a traffic stop based 5 on Defendant’s crossing the line into the s houlder was not a pretext to investigate a 6 DWI. 7 In Ochoa II, a narcotics officer was investig ating a residence for drug activity 8 and the presence of the defendant’s vehicle at the residence. Id. ¶ 44. The narcotics 9 officer did not issue traffic citations as a part of his duties. Id. He testified that he 10 wanted to identify and question the defendant. Id. The narcotics officer called a 11 uniformed patrol officer on the radio to see if a patrol officer would pull the defendant 12

over. Id. On the sole basis of the radio call, the patrol officer followed the defendant 13 for approximately thirteenblocks and stopped him. Id. The windows on the 14 defendant’s vehicle were tinted and, as a re sult, the patrol officer could not determine 15 whether the defendant was wearing a seat belt. Id. Nevertheless, because of the 16 narcotics officer’s report, the patrol officer stopped the defendant. Id. After the patrol 17 officer arrested the defendant because heimmediately recognized the defendant as 18 having warrants for his arrest, the narcotic s officer approached the defendant and 1913 began questioning him about drug activity at the residence. Id. 1 This Court departed from fe deral constitutional law in Ochoa II and held that 2 pretextual traffic stops violate Article II, Section 10 of the New Mexico Constitution. 3 Ochoa II , 2009-NMCA-002, ¶ 1. We defined a pretextual traffic stop as a “detention 4 supportable by reasonable suspicion or probable cause to believe that a traffic offense 5 has occurred, but is executed as a pretenseto pursue a hunch, a different more serious 6 investigative agenda for which there is no reasonable suspicion or probable cause.” 7 Id. ¶ 25 (internal quotation marks omitted). In determining whether a traffic stop is 8 pretextual, we explained that the district court should first determine whether there 9 was reasonable suspicion or probable cause fo r the stop and then decide if the officer’s 10 actual motive for the stop was unrelated to the justification for the stop. Id. ¶ 40. 11 “The defendant has the burden of proof to show pretext based on the totality of the 12 circumstances” and, “[i]f th e defendant has not placed substantial facts in dispute 13 indicating pretext, then the seizure is not pretextual.” Id. However, “[i]f the 14 defendant shows sufficient facts indicating the officer had an unrelated motive that 15 was not supported by reasonable suspicion or probable cause, then there is a rebuttable 16 presumption that the stop was pretextual,” and the burden shifts to the state to prove 17 that the officer would have stopped the de fendant even without the alternate motive. 18 Id. We explained that the facts relevant to the totality of the circumstances may 1914 include, but are not limited to: 1 whether the defendant was arrested for and charged with a crime 2 unrelated to the stop; the office r’s compliance or non-compliance with 3 standard police practices; whether th e officer was in an unmarked car or 4 was not in uniform; whether patrolling or enforcement of the traffic code 5 were among the officer’s typical employment duties; whether the officer 6 had information, which did not rise to the level of reasonable suspicion 7 or probable cause, relating to another offense; the manner of the stop, 8 including how long the officer traile d the defendant before performing 9 the stop, how long after the alleged suspicion arose or violation was 10 committed the stop was made, how many officers were present for the 11 stop; the conduct, demeanor, and statements of the officer during the 12 stop; the relevant characteristics of the defendant; whether the objective 13 reason articulated for the stop was nece ssary for the protection of traffic 14 safety; and the officer’s testimony as to the reason for the stop. 15 Id. ¶ 41. 16 In this case, having already decided that the district court properly found that 17 there was reasonable suspicion for the tra ffic stop based on traffic violations, we now 18 address whether Defendant met his burden of showing pretext by presenting 19 “sufficient facts indicating the officer had an unrelated motive that was not supported 20 by reasonable suspicion or probable cause.” Id. ¶ 40. 21 Defendant argues that the following f acts establish pretext: (1) as in Ochoa II , 22 the first police officer radioe d another police officer to pull the driver over; (2) also 23 as in Ochoa II , the second officer did not see the a lleged traffic violation; and (3) the 24 first officer did not see any traffic viol ations the entire time he followed Defendant 25 through Bloomfield, but believed Defendant was driving while under the influence. 2615 An analysis of the Ochoa II pretext indicators supports the district court’s rejection 1 of Defendant’s pretext claim. 2 The first Ochoa II factor is “whether . . . [D]efendant was arrested for and 3 charged with a crime unrelated to the stop.” Id. ¶ 41. Officers are not precluded from 4 observing and following an individual base d on their speculation or hunch regarding 5 potential criminal activity, so long as they do so within the confines of constitutional 6 protections. Officer Brown did not stop Defendant immediately based on his initial 7 observations of Defendant’s suspicious behavior and instead followed Defendant to 8 investigate further. Officer Brown’s initial observations regarding Defendant being 9 under the influence were substantiated by his further observation of Defendant 10 committing a traffic violation, which he co mmunicated immediately to Officer Carey. 11 Defendant was charged with aggravated DWI; failure to maintain traffic lane; driving 12 while license suspended or revoked; and driving without insurance. Even if 13 Defendant’s charges were not directly related to the stop, they were offenses 14 subsequently discovered during Defendant’s encounter with the officers. Defendant’s 15 erratic driving was not unrelated to the s ubsequent discovery of his other charges. 16 Leyva , 2011-NMSC-009, ¶ 23 (holding that “[a]n officer may expand the scope of a 17 traffic stop beyond the initial reason for th e stop and prolong the detention if the 18 driver’s responses and the circumstances give rise to a reasonable suspicion that 1916 criminal activity unrelated to the stop is afoot” (internal quotation marks and citation 1 omitted)). 2 The second factor is “the officer’s co mpliance or non-compliance with standard 3 police practices[.]” Ochoa II , 2009-NMCA-002, ¶ 41. No testimony was elicited to 4 suggest that either officer failed to comply with standard police practices. 5 The third and fourth factors are “whether the officer was in an unmarked car or 6 was not in uniform” and “whether patrolling or enforcement of the traffic code [was] 7 among the officer’s typical employment duties[.]” Id. On the night in question, 8 Officer Brown testified that he was c onducting routine patrol in his unmarked 9 assigned unit. Enforcement of the traffi c code fell within his employment duties. 10 The fifth factor is “whether the officerhad information, wh ich did not rise to 11 the level of reasonable suspicion or proba ble cause, relating to another offense[.]” 12 Id. Officer Brown’s observations stated in his testimony provide both officers with 13 reasonable suspicion to believe Defendant was driving while under the influence. 14 Specifically, the information included: (1 ) Defendant was consistently driving five 15 miles per hour below the speed limit; (2) De fendant was weaving within his lane of 16 traffic; (3) Defendant was taking a side road out of town that ran parallel to the main 17 road; and (4) Defendant drove half way out of his lane of traffic and onto the shoulder. 18 Once Defendant was stopped, the reason behind Defendant’s erratic driving became 1917 apparent. Defendant exhib ited familiar signs of intoxi cation and failed the three 1 sobriety tests administered by Officer Carey. 2 The sixth and seventh factors are “themanner of the stop, including how long 3 the officer trailed . . . [D]efendant before performing the stop, how long after the 4 alleged suspicion arose or violation was committed the stop was made, how many 5 officers were present for the stop” and “theconduct, demeanor, and statements of the 6 officer during the stop[.]” Id. Officer Brown testified that he followed Defendant for 7 approximately three miles, during which time he observed Defendant weave within 8 his lane of traffic, drive under the speed limit, and drive his vehicle half way out of 9 his lane and onto the shoulder. Although Officer Brown be lieved that Defendant was 10 driving while under the influence, he further testified that he waited to pull Defendant 11 over until he had probable cause and not ju st reasonable suspicion. Officers Carey 12 and Brown were present during the traffi c stop. However, unlike the facts in Ochoa 13
II , there was no evidence that either Offi cer Brown or Carey questioned Defendant 14 about matters unrelated to his driving. 15 The eighth factor concerns Defendant’s “relevant characteristics.” Id. 16 Defendant had a strong odor of alcohol, hi s eyes were watery, and his speech was 17 slightly slurred. This factor demonstrates the reasonableness of the decision to 18 conduct a DWI investigation. 1918 The ninth factor is “whether the objective reason articulated for the stop was 1 necessary for the protecti on of traffic safety.” Id. Defendant’s erratic driving posed 2 a danger to himself and to others on the roadway. 3 The tenth factor is the “officer’s tes timony as to the reason for the stop.” Id. 4 Officer Carey stopped Defendant for failure to maintain his lane. Officer Brown 5 wanted Defendant stopped to investigate why Defendant failed tomaintain his lane 6 of traffic and to investigate his reasonabl e suspicion that Defendant was driving while 7 under the influence of intoxicating alcohol or drugs. Unlike the facts in Ochoa II , 8 there was no evidence that Officer Carey wa s asked to perform a stop of Defendant’s 9 vehicle so that a matter unrelat ed to Defendant’s erratic driving could be investigated. 10 The totality of the circumstances in this case indicates that there was no 11 unrelated motive; rather, the motive throughout the entire encounter was a belief that 12 Defendant was under the influen ce of alcohol or drugs. Therefore, the officer’s initial 13 motive for following the vehicle matched the “objective existence of reasonable 14 suspicion.” Cf. id. ¶¶ 40, 43-46 (holding a stop to be pretextual when the stop was 15 initiated to investigate the defendant’s involvement in drug activity, a motive 16 unrelated to the seatbelt violation that wa s the objective justification for the stop). 17 Accordingly, Defendant has failed to establish a rebuttable presumption that the stop 18 was pretextual. 1919 SUFFICIENCY OF THE EVIDENCE 1 Standard of Review 2 Defendant next argues that the Stat e presented insufficient evidence that 3 Defendant was driving while impaired by alc ohol. In reviewing a claim of insufficient 4 evidence, this Court must determine “wheth er substantial eviden ce of either a direct 5 or circumstantial nature exists to s upport a verdict of guilt beyond a reasonable doubt 6 with respect to every element essential to a conviction.” State v. Duran , 2006-NMSC7 035, ¶ 5, 140 N.M. 94, 140 P. 3d 515 (internal quotation marks and citation omitted). 8 Substantial evidence is “such relevant evidence as a reasonable mind might accept as 9 adequate to support a conclusion.” State v. Wildgrube , 2003-NMCA-108, ¶ 3, 134 10 N.M. 262, 75 P.3d 862 (internal quotation mark s and citation omitted). In applying 11 this standard, this Court “review[s] the ev idence in the light most favorable to the 12 guilty verdict, indulging all reasonable inferences and resolving all conflicts in the 13 evidence in favor of the verdict.” State v. Rudolfo , 2008-NMSC-036, ¶ 29, 144 N.M. 14 305, 187 P.3d 170 (internal quotation marks and citation omitted). In reviewing the 15 evidence, the relevant question is whether “ anyrational jury could have found each 16 element of the crime to be established beyond a reasonable doubt.” State v. Garcia , 17 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) . The reviewing court does not 1820 substitute its judgment for that of the jury: “[c]ontrary evidence supporting acquittal 1 does not provide a basis for reversal because the jury is free to reject [the d]efendant’s 2 version of the facts.” State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 3 829. Nor will this Court “evaluate th e evidence to determine whether some 4 hypothesis could be designed which is consistent with a finding of innocence.” State 5 v. Graham , 2005-NMSC-004, ¶ 13, 137 N.M. 197, 109 P.3d 285 (internal quotation 6 marks and citation omitted). 7 Defendant was convicted of DWI under Section 66-8-102(A), which reads “[i]t 8 is unlawful for a person who is under the influence of intoxicating liquor to drive a 9 vehicle within this state.” Our case law and our Supreme Court’s Uniform Jury 10 Instruction have phrased this statutory language as follows: 11 A person is under the influence of intoxicating liquor if as a result of 12 drinking liquor [the driver] was less ab le to the slightest degree, either 13 mentally or physically, or both, to exercise the clear judgment and steady 14 hand necessary to handle a vehicle withsafety to [the driver] and the 15 public. 16 State v. Sanchez , 2001-NMCA-109, ¶ 6, 131 N.M. 355, 36 P.3d 446 (alteration in 17 original) (internal quotation marks and citation omitted). 18 This Court has upheld convictions under the foregoing standard in cases 19 analogous to the one at hand. See State v. Soto , 2007-NMCA-077, ¶¶ 3, 4, 34, 142 20 N.M. 32, 162 P.3d 187 (holding that there wa s sufficient evidence of DWI under the 2121 impaired-to-the-slightest-degree standard even though the officers observed no 1 irregular driving, the defendant’s behavior was not irregular, hewas cooperative, and 2 no field sobriety tests were conducted, given that the de fendant “had red, bloodshot, 3 and watery eyes, as well as slurred speechand a very strong odor of alcohol on his 4 breath[,]” the defendant admitted drinking, the officers observed several empty cans 5 of beer where the defendant had been, and the officer opined that the defendant was 6 intoxicated); State v. Gutierrez , 1996-NMCA-001, ¶ 4, 121 N.M. 191, 909 P.2d 751 7 (holding that there was sufficient evid ence to convict under Section 66-8-102(A) 8 when the defendant “was weaving into other traffic lanes; [the d]efendant narrowly 9 missed hitting a truck; [the d]efendant smelled of alcohol and had bloodshot, watery 10 eyes; [the d]efendant failed three field sobriety tests; [the d]efendant admitted drinking 11 alcohol and smoking marijuana; and the offi cers believed that [the d]efendant was 12 intoxicated”); State v. Ruiz , 120 N.M. 534, 535, 540, 903 P. 2d 845, 846, 851 (Ct. App. 13 1995) (upholding the district court’s conclu sion that there was sufficient evidence of 14 DWI under the impaired-to-the-slightest-degree standard when the defendant's vehicle 15 weaved out of its lane, the defendant had watery, bloodshot eyes, smelled of alcohol, 16 had slurred speech, admitted drinking, and performed field sobriety tests with mixed 17 results), abrogated on other grounds by State v. Martinez , 2007-NMSC-025, 141 18 N.M. 713, 160 P.3d 894. 1922 Defendant argues that Officer Carey did not see any traffic violations 1 whatsoever and that Officer Brown follo wed Defendant for miles through Bloomfield 2 and into Aztec and did not observe any traffic violations. Additionally, Defendant 3 argues that Officer Brown’s testimony that Defendant swerved into the shoulder as 4 they were entering Aztec was not credible, as evidenced by the jury’s acquittal, and 5 that none of the other observations tes tified to by Officer Brown were illegal or 6 dangerous. Moreover, Defendant argues that the officers’ testimony describing 7 Defendant’s performance on the field sobriety tests and his driving are of minimal 8 probative value on the issue of impairment because they are equally consistent with 9 not being impaired. Thus, Defendant argues that the evidence presented was 10 insufficient to prove Defendant’s drivi ng was impaired to the slightest degree. 11 As we have discussed, the district court had before it Officer Brown’s and 12 Officer Carey’s observations of Defendant's erratic driving, his appearance, and his 13 behavior. The jury heard evidence that Defendant was initially weaving within his 14 lane of traffic, driving five miles under the posted speed limit, and drove his vehicle 15 half way out of his lane of traffic into the shoulder and back. The jury also heard 16 evidence that Defendant exhibited the familiar signs of intoxication that included 17 having a strong odor of alcohol, watery eyes , and slurred speech. The jury considered 18 the evidence about Defendant’s poor performan ce of the field sobriety tests, that he 1923 refused to comply with the ICA, and th at he was combative at the hospital. 1 Given the evidence, the factfinder could rely on common knowledge and 2 experience to determine wh ether Defendant was under the influence of alcohol. See 3 State v. Baldwin , 2001-NMCA-063, ¶ 16, 130 N.M. 705, 30 P.3d 394 (pointing out 4 that a factfinder can rely on “human experience” in deciding whether a defendant was 5 under the influence and could “drive an automobile in a pr udent manner”). This Court 6 recognizes that it is for the factfinder toresolve any conflict in the testimony of 7 witnesses and to determine where the weight and credibility lay. State v. Salas , 1999- 8 NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482. 9 Viewing all the evidence in the record ina light most favorable to the verdict, 10 a rational jury could draw reasonable inferences that Defendant was the driver of the 11 vehicle and that he was less able “to the slightest degree . . . to exercise the clear 12 judgment . . . necessary to handle a vehicle.” Sanchez , 2001-NMCA-109, ¶ 6 (internal 13 quotation marks and citation omitted). The juryresolved conflicts in the evidence and 14 questions of credibility in favor of guilt, thereby rejecting Defendant’s argument that 15 he was driving safely. De fendant’s conviction of DWI is supported by sufficient 16 evidence in the record. 17 INEFFECTIVE ASSISTANCE OF COUNSEL 18 In a separate hearing on December 15, 2009, Defendant informed the court of 1924 some of the issues he was having with his attorney, including disclosure of what he 1 believed to be privileged info rmation. The court did not find that Defendant’s rights 2 had been violated. During the trial on January 12, 2010, defense counsel informed the 3 court that he and Defendant were having a disagreement about whether to play the 4 DVD from Officer Brown’s dashboard camera. Defendant believed that because it did 5 not show that he was unable to maintain hi s lane, the jury woul d see that the officer 6 did not have probable cause to stop him. The court explained that probable cause is 7 not a jury question and that the question of probable cause had been decided at the 8 suppression hearing. The court ultimately d ecided that it was a tactical decision for 9 defense counsel to make. Prior to se ntencing, Defendant and defense counsel 10 informed the court that Defendant was dissatisfied with his counsel. 11 The framework for evaluating a claim of ineffective assistance of counsel is 12 well established. Following Strickland v. Washington , 466 U.S. 668 (1984), we 13 require Defendant to show, first, that his counsel’s performance was deficient and, 14 second, that this deficiency prejudiced his defense. Lytle v. Jordan , 2001-NMSC-016, 15 ¶ 25, 130 N.M. 198, 22 P.3d 666. The burden remains with Defendant to establish 16 each element. Id. When an ineffective assistance clai m is first raised on direct appeal, 17 we evaluate the facts thatare part of the record. Cf. State v. Telles , 1999-NMCA-013, 18 ¶ 25, 126 N.M. 593, 973 P.2d 845 (“Without a record, we cannot consider [the 1925 d]efendant’s claim of ineffective assistance of counsel on direct appeal.”). If facts 1 necessary to a full determination are not part of the record, an ineffective assistance 2 claim is more properly brought through a habeas corpus petition, although an 3 appellate court may remand a case for an evidentiary hearing if the defendant makes 4 a prima facie case of in effective assistance. See State v. Martinez , 1996-NMCA-109, 5 ¶ 25, 122 N.M. 476, 927 P.2d 31; State v. Swavola , 114 N.M. 472, 475, 840 P.2d 6 1238, 1241 (Ct. App. 1992). In this case, th ere is no need to remand the case because 7 all of the facts necessary to evaluate th e claim are part of the record on appeal. 8 Defense counsel’s performance is defici ent if “counsel’s representation fell 9 below an objective standard of reasonableness.” Lytle , 2001-NMSC-016, ¶ 26 10 (internal quotation marks and citation omitted). In determining whether a particular 11 counsel’s performance was deficient, an appellate court should presume that the 12 performance fell within a “wide range of reasonable professional assistance.” Id

. 13 (internal quotation marks and citation omitted) . “Indeed, if on appeal we can conceive 14 of a reasonable trial tactic which would explain the counsel’s performance, we will 15 not find ineffective assistance.” State v. Roybal , 2002-NMSC-027, ¶ 21, 132 N.M. 16 657, 54 P.3d 61. 17 Defendant’s ineffective assistance of counsel claim is based on three grounds. 18 First, Defendant asserts that trial counselwas ineffective because counsel failed to 1926 introduce and show the jury the DVD intr oduced during the suppression hearing as 1 State’s Exhibit 1. Defendant claims th at the DVD from the dashboard camera did not 2 show any traffic violations by Defendant, as admitted by Officer Brown. When the 3 issue of the DVD arose at trial, defense c ounsel informed the district court that he 4 reviewed the video, that the video was vague and ambivalent, and that he did not 5 believe the video would help Defendant. Th e record supports the finding that defense 6 counsel’s conduct was based on strategy, thus this claim is insufficient to support 7 Defendant’s position. See id. 8 The second ground upon which Defendant bases his ineffective assistance of 9 counsel claim concerns the f act that counsel did not expl ore the inconsistencies within 10 the officers’ testimony, including the dist ance between the two cities, the location 11 where Officer Carey was waiting, and the lo cation of the stop. However, Defendant 12 has not cited record evidence to support howthe officers’ testimony was inconsistent. 13 See Santa Fe Exploration Co. v. Oil Conservation Comm’n , 114 N.M. 103, 108, 835 14 P.2d 819, 824 (1992) (stating that we will not consider arguments based on factual 15 allegations that are unsupported by citation to the record). Thus, we decline to 16 consider this argument. 17 The third ground upon which Defendant ba ses his ineffective assistance of 18 counsel claim is that defense counsel did not call Defendant’s w itnesses regarding the 1927 preliminary hearing. The decision to call a witness is a matter of trial tactics and 1 strategy. State v. Harrison , 2000-NMSC-022, ¶ 63, 129 N.M. 328, 7 P.3d 478. 2 Therefore, a prima facie case has not been established as to this claim. 3 Finally, Defendant asserts that his trial attorney was unable to provide effective 4 representation because the attorney-client relationship had broken down, as evidenced 5 by the record. Defendant has not shown how the break down in the attorney-client 6 relationship prejudiced his defense. A prima facie case of ineffective assistance of 7 counsel is not shown on mere speculation of prejudice. See In re Ernesto M., Jr. , 8 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is 9 not a showing of prejudice.”). 10 CONCLUSION 11 For the foregoing reasons, this Court affirms Defendant’s convictions. 12 IT IS SO ORDERED. 13

_______________________________ 14 JAMES J. WECHSLER, Judge 1528 WE CONCUR: 1

__________________________________ 2 CELIA FOY CASTILLO, Chief Judge 3

_________________________________ 4 JONATHAN B. SUTIN, Judge 5