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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 34,458

5 BENJAMIN GONZALES,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

8 Jane Shuler-Gray, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 for Appellee

12 L Helen Bennett PC

13 Linda Helen Bennett

14 Albuquerque, NM

15 for Appellant

16 MEMORANDUM OPINION

17 GARCIA, Judge.

18 {1} Defendant, Benjamin Gonzales, appeals his convictions for arson. We issued
2

1 a notice of proposed summary disposition proposing to affirm on April 21, 2015.

2 Defendant filed a timely memorandum in opposition, which we have duly considered.

3 We remain unpersuaded that our initial proposed disposition was incorrect, and we

4 therefore affirm. 

5 DISCUSSION

6 {2} In his memorandum in opposition, Defendant continues to argue that the

7 evidence was insufficient to support his conviction for arson, contrary to NMSA 1978,

8 Section 30-17-5(A) (2006). Defendant elaborates in his memorandum in opposition

9 that the preliminary investigation into the fire demonstrated that there was no cause

10 or exact origin found. [MIO 2] Defendant points to an apparent discrepancy between

11 the amount listed as the estimated insurance payout ($6,000) and the charge of arson

12 over $20,000. [MIO 2] Defendant also argues generally that the State’s witnesses were

13 not credible. [MIO 2]

14 {3} “In reviewing the sufficiency of the evidence, we must view the evidence in the

15 light most favorable to the guilty verdict, indulging all reasonable inferences and

16 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,

17 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. As we stated in our notice of

18 proposed summary disposition, without a complete recitation of all the evidence and

19 witness testimony presented at trial, we are unable to engage in a meaningful review
3

1 of Defendant’s challenge to the sufficiency. Neither the docketing statement nor the

2 memorandum in opposition provide such a recitation. See Thornton v. Gamble,

3 1984-NMCA-093, ¶ 18, 101 N.M. 764, 688 P.2d 1268 (stating that counsel must set

4 out all relevant facts in the docketing statement, including those that support the

5 judgment below). 

6 {4} However, we note that any conflicts in the evidence were for the factfinder to

7 resolve and do not present a basis for reversal on appeal. See State v. Rojo, 1999-

8 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting

9 acquittal does not provide a basis for reversal because the jury is free to reject

10 Defendant’s version of the facts.”); see also State v. Sarracino, 1998-NMSC-022,

11 ¶ 24, 125 N.M. 511, 964 P.2d 72 (observing that “although contrary evidence is

12 presented which may have supported a different verdict, the appellate court will not

13 weigh the evidence or foreclose a finding of substantial evidence”) (internal quotation

14 marks and citation omitted)). Additionally, the credibility of the witnesses is for the

15 factfinder to determine, and we do not substitute our judgment on appeal. See State

16 v. Roybal, 1992-NMCA-114, ¶ 9, 115 N.M. 27, 846 P.2d 333(noting that it is for the

17 factfinder to evaluate the weight of the evidence, to assess the credibility of the

18 various witnesses, and to resolve any conflicts in the evidence). Accordingly, we

19 reject Defendant’s challenge to the sufficiency of the evidence.
4

1 {5} Defendant next argues that he received ineffective assistance of counsel. [MIO

2 3] As this issue was not raised in the docketing statement, we understand Defendant

3 to raise it pursuant to a motion to amend the docketing statement. See State v. Moore,

4 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91 (stating that issues raised in a

5 motion to amend must be viable). Defendant asserts that his counsel was ineffective

6 by: (1) failing to conduct adversarial testing of the State’s evidence, (2) failing to

7 oppose the State’s introduction of prior bad acts evidence, (3) subjecting him to an

8 unwarranted competency evaluation, (4) failing to file any pleadings, (5) generally

9 failing to engage in effective advocacy. [MIO 3-5] Defendant argues that, as a result

10 of his counsel’s deficient performance, he spent over a year in pre trial confinement,

11 and was therefore presumptively prejudiced. [MIO 4] 

12 {6} There is a two fold test for proving ineffective assistance of counsel; the

13 defendant must show (1) that counsel’s performance fell below that of a reasonably

14 competent attorney, and (2) that defendant was prejudiced by the deficient

15 performance. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729.

16 The burden of proof is on defendant to prove both prongs. Id. “When an ineffective

17 assistance claim is first raised on direct appeal, we evaluate the facts that are part of

18 the record. “If facts necessary to a full determination are not part of the record, an

19 ineffective assistance claim is more properly brought through a habeas corpus petition,
5

1 although an appellate court may remand a case for an evidentiary hearing if the

2 defendant makes a prima facie case of ineffective assistance.” State v. Roybal,

3 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. 

4 {7} The record before us does not support Defendant’s contention that he received

5 ineffective assistance of counsel. We are unable, on this record, to determine whether

6 independent testing of the State’s evidence would have resulted in favorable evidence

7 for Defendant. However, we note that counsel’s alleged failure to adequately

8 investigate does not establish ineffective assistance per se. Rather, Defendant is

9 required to demonstrate how pretrial investigation would have altered the course of

10 the proceedings. See State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d

11 845 (rejecting a claim of ineffective assistance based on counsel’s alleged failure to

12 investigate). Mere speculation that testing would have altered the course of the

13 proceedings is insufficient, and the record before us contains no specifics. See

14 generally State v. Torres, 2005-NMCA-070, ¶ 25, 137 N.M. 607, 113 P.3d 877

15 (rejecting a claim of ineffective assistance due to the defendant’s failure to

16 demonstrate with specificity how the defense was actually prejudiced). 

17 {8} Defendant also fails to identify with any degree of specificity on what basis

18 motions should have been filed that were not, and Defendant fails to explain how he

19 was actually prejudiced by counsel’s failure to file motions. See In re Ernesto M.,
6

1 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is

2 not a showing of prejudice.”). We also note that trial counsel is not ineffective for

3 failure to make a motion that is not supported by the record. See State v. Chandler,

4 1995-NMCA-033, ¶ 35, 119 N.M. 727, 895 P.2d 249. As the record does not contain

5 a statement of the evidence at trial, we also cannot determine whether the result of the

6 proceedings would have been different had counsel objected to introduction of prior

7 bad acts evidence. See State v. Martinez, 2007-NMCA-160, ¶ 19, 143 N.M. 96, 173

8 P.3d 18 (stating that if a defendant fails to show a reasonable probability that but for

9 counsel’s deficient performance the result of the proceedings would have been

10 different then the presumption of effective assistance of counsel controls). 

11 {9} Finally, we cannot determine on this record whether defense counsel’s decision

12 to request competency evaluations was below the standard of a reasonably competent

13 attorney. We therefore hold that Defendant has failed to establish a prima facie case

14 of ineffective assistance of counsel. See State v. Powers, 1990-NMCA-108, ¶¶ 5-7,

15 111 N.M. 10, 800 P.2d 1067 (stating that an insufficient factual basis precludes

16 appellate review of a claim of ineffective assistance of counsel). However, although

17 Defendant has failed to establish a claim of ineffective assistance of counsel, we reach

18 this conclusion without prejudice to Defendant’s pursuit of habeas corpus proceedings

19 on this issue and the development of a factual record. See State v. Gonzales,
7

1 2007-NMSC-059, ¶ 16, 143 N.M. 25, 172 P.3d 162; see also State v. Baca,

2 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that

3 provides a basis for remanding to the trial court for an evidentiary hearing on

4 ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition

5 for writ of habeas corpus[.]”).

6 {10} For these reasons, we affirm.

7 {11} IT IS SO ORDERED.

8 ________________________________

9 TIMOTHY L. GARCIA, Judge

10 WE CONCUR:

11 _______________________________

12 JONATHAN B. SUTIN, Judge

13 _______________________________

14 M. MONICA ZAMORA, Judge