This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the 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. 29,779 9 HERBERT MOORE, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY 12 Matthew Reynolds, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Carlos Ruiz de la Torre, A ssistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 WECHSLER, Judge. 222 Defendant appeals his convictions for two c ounts of trafficking 1 methamphetamine, solicitation to distribute, and conspiracy to manufacture. We 2 proposed to affirm his convictions. De fendant has responded with an opposition to 3 our proposal, along with a motion to ame nd the docketing statement to assert 4 ineffective assistance of trial counsel. We have considered Defendant’s arguments 5 and, finding them unpersuasive, we affirm. 6 Defendant continues to arguethat the district court erred in denying his motion 7 for change of venue. He asserts that the reason given for the denial, failure to file an 8 affidavit as required by NMSA 1978, Secti on 38-3-3(B) (2003), was in error. He 9 points out that the motion filed by counsel included the reasons why Defendant could 10 not get a fair trial in Estancia. He argues that the motion was in the nature of an 11 affidavit since an attorney is bound as an officer of the court to allege only those 12 matters he believes to be true and correct. See Rule 16-301 NMRA. Thus, he argues, 13 there was an affidavit as required by statute. 14 However, even if we were to equate counsel’s allegations with the affidavit 15 required by statute, we would not find error here. As we noted in our calendar notice, 16 the district court in denying the motion allowed Defendant the opportunity to file 17 another motion with an affidav it. [RP 96] In so doing, the district court addressed the 18 specifics of what it expected regarding alle gations of prejudice to Defendant. [Id.] The 193 district court was clear that it needed f acts specific to this particular case, not 1 Defendant’s previous case. Thus, we co nclude that although the order denying the 2 change of venue states that the reason was lack of an affidavit as required by statute, 3 the district court correctly denied the motion for failure to present sufficient facts to 4 support a change of venue for this case. See State v. Gallegos , 2007-NMSC-007, ¶ 26, 5 141 N.M. 185, 152 P.3d 828 (stating that an appellate court will affirm a district 6 court’s decision if it is right for any reason, as long as it is not unfair to the appellant). 7 We conclude that the district court did not err in denying the motion for change of 8

venue. 9 Insofar as Defendant contends that th e district court was required to change 10 venue upon his first motion, State v. House , 1999-NMSC-014, ¶ 29, 127 N.M. 151, 11 978 P.2d 967, we note that the district court sought evidence in support of Defendant’s 12 motion. [RP 95-96] Moreover, the decisi on to change venue was left to the sound 13 discretion of the district court. NMSA 1978, § 38-3-5 (1929). Wecannot say that the 14 district court abused its discretion in its decision. 15 Further, as we pointed out in our calendar notice, Defendant has not shown that 16 he was denied a fair and impartial trial. Thus, his claim fails for lack of a showing of 17 prejudice. See House , 1999-NMSC-014, ¶ 104. 18 Defendant further continues to argue that the districtcourt erred in denying his 194 motion to suppress evidence obtained pursuant to a search warrant. He contends that 1 the affidavit for search warrant did not es tablish probable cause because it was based 2 on allegations from an unreliable confidential informant. Defendant argues that when 3 an affidavit for search warrant is based on information from a confidential informant, 4 the affidavit must show the basis for believing the informant and a basis for 5 concluding that the informant gathered the information of illegal activity in a reliable 6 fashion. State v. Cordova , 109 N.M. 211, 214, 784 P.2d 30, 33 (1989). He argues 7 that those factors were not satisfied here. We disagree. 8 The affidavit for search warrant states that the informant is not “working off 9 charges” and is a concerned citizen. [RP 33] The affidav it then describes the activity 10 occurring on Defendant’s rural property. [Id.] It also describes how Defendant and 11 others go to different stores and buy large amounts of pseudoephedrine. [Id.] 12 Contrary to Defendant’s assertion, the affidavit does not re ly solely on the information 13 from the informant. It includes informati on regarding law enforcement’s verification 14 of the information, in particular th e purchase of pseudoephedrine. [RP 34] 15 Defendant argues that the purchase of ps eudoephedrine is not illegal. We agree, 16 when the drug is bought for personal use. However, it appears here that the amounts 17 being purchased by Defendant at different stores at the same time were inconsistent 18 with personal use. Further, pseudoephedrine is an immediate precursor to 195 methamphetamine. Thus, its purchase in large amounts is not consistent with innocent 1 activity. Cf. State v. Nyce , 2006-NMSC-026, ¶¶ 16-17, 139 N.M. 647, 137 P.3d 587 2 (distinguishing between precursors and i ngredients and acknowledging that purchase 3 of legal product in large amounts may give rise to probable cause), limited on other 4 grounds by State v. Williamson , 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376. 5 We conclude that the affidavit for search warrant contained sufficient reliable 6 information to establish probable cause. 7 Defendant additionally continues to arguethat the identity of the confidential 8 informant should have been revealed. As support for his argument, he contends that 9 the affidavit for search warrant did not contain enough information to establish the 10 basis of the informant’s information and that he needed to know whether the 11 informant was biased against him. Defendant notes that many of the witnesses at trial 12 were either on probation, had been granted witness immunity, or recently pled guilty 13 to reduced sentences. He then conjectures that if one of those witnesses was the 14 informant, then the informant’s information was compromised. Werejected a similar 15 argument in State v. Campos , 113 N.M. 421, 424-25, 827 P. 2d 136, 139-40 (Ct. App. 16 1991), rev’d on other grounds , 117 N.M. 155, 870 P.2d 117 ( 1994). Defendant does 17 not explain why we should treat his case differently. 18 As we noted above, the confidential informant’s information did not provide 196 the sole basis for the affidavit for searchwarrant. Thus, Defe ndant’s claim that he 1 needed to know the informant’s motivation is undermined by the independent 2 information obtained by law enforcement. Weconclude that the district court did not 3 err in refusing to order the State to disclose the confidential informant. 4 Defendant also continues to argue that the district court should have granted a 5 directed verdict on the charges at the close of the State’s case. The question raised by 6 a directed verdict motion is su fficiency of the evidence. See State v. Armijo , 1997- 7 NMCA-080, ¶ 16, 123 N.M. 690, 944 P.2d 919. Defendant argues that the State’s 8 case was made in large part through the testimony of unreliable witnesses— 9 methamphetamine users and traffickers, all with prior felonies. The credibility of 10 these witnesses is left to the jury. See State v. Gipson , 2009-NMCA-053, ¶ 12, 146 11 N.M. 202, 207 P.3d 1179. The testimony of th ese witnesses along with other evidence 12 was sufficient to establish the crimes charged. 13 Defendant cites to his testimony and that of his sister to support his claim that 14 the evidence was insufficient. However, the motion for directed verdict was made 15 before that testimony was presented. Furthermore, the defense testimony simply 16 created conflicting evidence that the jury was required to resolve. As we have often 17 stated, the jury is not required to accep t the defendant’s version of events. State v. 18 Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed 1998). We conclude 197 that the evidence was sufficient to support the jury verdicts. 1 Finally, in his motion to amend the docketing statement, Defendant seeks to 2 argue that trial counsel was ineffective. On such a claim, Defendant must show that 3 counsel’s performance fell below that of a reasonable competent attorney and that the 4 deficient performance prejudiced his case. State v. Plouse , 2003-NMCA-048, ¶ 6, 133 5 N.M. 495, 64 P.3d 522. We do not second guess the trial tactics and strategy of 6 counsel . See Lytle v. Jordan , 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666. 7 Here, the actions of defense counsel thatDefendant asserts were incompetent are 8 matters of tactics and strategy. See State v. Stenz , 109 N.M. 536, 538, 787 P.2d 455, 9 457 (Ct. App. 1990) (“A trial counsel is not incompetent for failing to make a motion 10 when the record does not support the motion.”); State v. Orosco , 113 N.M. 789, 797, 11 833 P.2d 1155, 1163 (Ct. App. 1991) (“The deci sion whether to call a witness is a 12 matter of trial tactics and strategy within the control of trial counsel.”); State v. 13 Rodriguez , 107 N.M. 611, 615, 762 P.2d 898, 902 (C t. App. 1988) ( stating that 14 decisions concerning objections are consideredto be in the area of trial tactics and 15 ineffective assistance is not necessarily established by showing unsuccessful trial 16 tactics). Because those instances of conduct asserted by Defendant to be incompetent 17 fall within the ambit of trial tactics and strategy, we decline to grant the motion to 18 amend. See State v. Ibarra , 116 N.M. 486, 490, 864 P. 2d 302, 306 (Ct. App. 1993) 198 (stating that issues raised in motions to amend must be viable). 1 For the reasons stated herein and in our notice of proposed disposition, we 2 affirm Defendant’s convictions. 3 IT IS SO ORDERED. 4

______________________________ 5 JAMES J. WECHSLER, Judge 6 WE CONCUR: 7

_______________________________ 8 CYNTHIA A. FRY, Chief Judge 9

_______________________________ 10 JONATHAN B. SUTIN, Judge 11