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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 35,463 4 DONNA ROMERO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 7 Albert J. Mitchell, Jr., District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Will O’Connell, Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VANZI, Chief Judge. 17 {1} Defendant appeals her convictions for possession of methamphetamine, 18 distribution of methamphetamine, and two counts of possession of drug paraphernalia. 192 We issued a calendar notice proposing to affirm. Defendant has responded with a 1 memorandum in opposition. We affirm. 2 {2} Initially, we note that this case originat ed as two separate proceedings, which 3 were consolidated for trial, but resulted inseparate judgments. As a result, we have 4 two separate records, D-1010-CR-14-00035 [h ereinafter referred to as RP 35] and D5 1010-CR-14-00036 [hereinafter referred to as RP 36]. 6 VIDEOTAPE 7 {3} Defendant continues to claim that the State had a duty to preserve a videotape 8 of a day room inside the jail that allege dly would have shown methamphetamine being 9 passed around by other inmates. [MIO 4- 5] As indicated by our discussion of 10 Defendant’s sufficiency issue and as referenced by the State below [RP 35 at 35; RP 11 36 at 182], the charges were not based on any conduct that occurred in the day room. 12 The video was therefore not material, and th e failure to preserve it did not prejudice 13 Defendant. See State v. Chouinard , 1981-NMSC-096, ¶ 16, 96 N.M. 658, 634 P.2d 14 680 (requiring a defendant to show that the State breached a duty to preserve, that the 15 item was material, and that prejudice resu lted). Although Defendant claims that the 16 videotape could possibly have shown that the distribution took place elsewhere, “[t]he 17 mere possibility that an item of undisclo sed information might have helped the 18 defense, or might have affected the outcome of the trial, does not establish 19 ‘materiality’ in the constitutional sense.” State v. Martin , 1984-NMSC-077, ¶ 37, 101 203 N.M. 595, 686 P.2d 937 (internal quotati on marks and citation omitted). The 1 videotape would have been material if th ere had been any other evidence to support 2 Defendant’s otherwise purely speculative cl aim. Because the charges were not based 3 on any activity in the day room and becausethere is no evidence to support the mere 4 possibility that the distribution occurred inthe day room, we conclude that no error 5 occurred. 6 SUFFICIENCY 7 {4} Defendant continues to challenge the su fficiency of the evidence to support her 8 convictions for possession of methamphetamine, possession of drug paraphernalia, 9 trafficking (distribution) methamphetamine , and tampering with evidence. [MIO 7] 10 A sufficiency of the evidence review i nvolves a two-step process. Initially, the 11 evidence is viewed in the light most favorableto the verdict. Thenthe appellate court 12 must make a legal determination of “whether the evidence view ed in this manner 13 could justify a finding by any rational trier of fact that each element of the crime 14 charged has been establis hed beyond a reasonable doubt.” State v. Apodaca , 1994- 15 NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d 756 (i nternal quotation marks and citation 16 omitted). 17 {5} In this case, an officer stopped Defendant based on a traffic violation, and she 18 was found to be in possession of a glass pi pe with a white substance on it that was 19 later identified to be metham phetamine. [DS 2-3] We concl ude that this was sufficient 204 to support the convictions for possession of methamphetamine and possession of drug 1 paraphernalia. [ See Jury Instructions, RP 35 at 253, 254] Defendant was arrested, and 2 three days later she was searched in jail, and methamphetamine was discovered hidden 3 in her vagina (hence the tampering charge). [DS 4] Additional methamphetamine was 4 found in a cell that Defendant shared with Jodi Romero. [DS 4] Jodi Romero testified 5 that the methamphetamine was hers and had been given to her by Defendant. [DS 4-5] 6 Defendant claims that this witness was untrustworthy. [MIO 7] It was for the fact7 finder to resolve this credibility challenge. See State v. Salas , 1999-NMCA-099, ¶ 13, 8 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder to resolve any 9 conflict in the testimony of the witnesses and to determine where the weight and 10 credibility lie). We believe that this evid ence was sufficient to support the trafficking 11 (distribution) and tampering convictions. [ See Jury Instructions, RP 36 at 286, 289] 12

INEFECTIVE ASSISTANCE OF COUNSEL 13 {6} Defendant claims that trial counsel was ineffective. [MIO 10] We will not 14 decide an ineffective assist ance of counsel claim on direct appeal unless a defendant 15 makes a prima facie showing that counsel was incompetent and the incompetence 16 resulted in prejudice to the defense. See State v. Richardson , 1992-NMCA-112, ¶ 4, 17 114 N.M. 725, 845 P.2d 819, abrogated on other grounds by Allen v. LeMaster , 2012- 18 NMSC-001, 267 P.3d 806. A defendant must show that counsel’s actions were not 195 simply matters of strategy, were made part of the record, and have prejudiced 1 Defendant. See State v. Baca , 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 2 (stating that “a prima facie case is not ma de when a plausible, rational strategy or 3 tactic can explain the conduct of defe nse counsel” (internal quotation marks and 4 citation omitted)). 5 {7} Here, Defendant claims that counsel s hould have raised as a defense to the 6 trafficking charge that she was forced to bring the methamphetamine into jail because 7 she had it on her person when she was arrestedand to use this claim as a basis for 8 requesting a lesser included instruction on th e distribution claim. We consider trial 9 counsel’s decision to challenge the credibilityof the State’s witness, rather than to 10 concede possession, to bea matter of strategy. See State v. Crain , 1997-NMCA-101, 11 ¶ 25, 124 N.M. 84, 946 P.2d 1095 (“[W]e regard trial counsel’s choice and 12 presentation of defenses and defense witnesses as falling within the ambit of trial 13 tactics and strategy.”). Defendant’s clai ms are more properly pursued in habeas 14 proceedings. See State v. Cordova , 2014-NMCA-081, ¶ 7, 331 P.3d 980 (“Our 15 Supreme Court has expressed a preference that ineffective assistance of counsel 16 claims be adjudicated in habeas corpus pr oceedings, rather than on direct appeal.”). 17 {8} For the reasons set forth above, we affirm. 18

{9} IT IS SO ORDERED. 196 __________________________________ 1 LINDA M. VANZI, Chief Judge 2 WE CONCUR: 3

_________________________________ 4 TIMOTHY L. GARCIA, Judge 5

_________________________________ 6 J. MILES HANISEE, Judge 7