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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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. 34,458 4 BENJAMIN GONZALES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Jane Shuler-Gray, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 L Helen Bennett PC 12 Linda Helen Bennett 13 Albuquerque, NM 14 for Appellant 15 MEMORANDUM OPINION 16 GARCIA, Judge. 17
{1} Defendant, Benjamin Gonzales, appeals his convictions for arson. We issued 182 a notice of proposed summary disposition proposing to affirm on April 21, 2015. 1 Defendant filed a timely memorandum in oppos ition, which we have duly considered. 2 We remain unpersuaded that our initial proposed disposition was incorrect, and we 3 therefore affirm. 4 DISCUSSION 5
{2} In his memorandum in opposition, Defendant continues to argue that the 6 evidence was insufficient to support his convi ction for arson, contrary to NMSA 1978, 7 Section 30-17-5(A) (2006). Defendant elaborates in his memorandum in opposition 8 that the preliminary investigation into the fire demonstrated that there was no cause 9 or exact origin found. [MIO 2] Defendant points to an apparent discrepancy between 10 the amount listed as the estimated insuran ce payout ($6,000) and the charge of arson 11 over $20,000. [MIO 2] Defendant also argues generally that the State’s witnesses were 12 not credible. [MIO 2] 13
{3} “In reviewing the sufficiency of the evidence, we must view the evidence in the 14 light most favorable to the guilty verdic t, indulging all reasonable inferences and 15 resolving all conflicts in the evid ence in favor of the verdict.” State v. Cunningham , 16 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. As we stated in our notice of 17 proposed summary disposition, without a comp lete recitation of all the evidence and 18 witness testimony presented at trial, we are unable to engage in a meaningful review 193 of Defendant’s challenge to the sufficien cy. Neither the docketing statement nor the 1 memorandum in opposition provide such a recitation. See Thornton v. Gamble , 2 1984-NMCA-093, ¶ 18, 101 N.M. 764, 688 P.2d 1268 (stating that counsel must set 3 out all relevant facts in the docketing statement, including those that support the 4 judgment below). 5
{4} However, we note that any conflicts inthe evidence were for the factfinder to 6 resolve and do not present a ba sis for reversal on appeal. See State v. Rojo , 1999- 7 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting 8 acquittal does not provide a basis for reversal because the jury is free to reject 9 Defendant’s version of the facts.”); see also State v. Sarracino , 1998-NMSC-022, 10 ¶ 24, 125 N.M. 511, 964 P.2d 72 (observing that “although contrary evidence is 11 presented which may have s upported a different verdict, the appellate court will not 12 weigh the evidence or foreclose a finding of substantial evidence”) (internal quotation 13 marks and citation omitted)). Additionally, th e credibility of the witnesses is for the 14 factfinder to determine, and we do not substitute our judgment on appeal. See State 15 v. Roybal , 1992-NMCA-114, ¶ 9, 115 N.M. 27, 846 P.2d 333(noting that it is for the 16 factfinder to evaluate the weight of the evidence, to assess th e credibility of the 17 various witnesses, and to resolve any c onflicts in the evidence). Accordingly, we 18 reject Defendant’s challenge to the sufficiency of the evidence. 194 {5} Defendant next argues that he received ineffective assistance of counsel. [MIO 1 3] As this issue was not raised in th e docketing statement, we understand Defendant 2 to raise it pursuant to a motion to amend the docketing statement. See State v. Moore , 3 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91 (stating that issues raised in a 4 motion to amend must be viable). Defendant asserts that his c ounsel was ineffective 5 by: (1) failing to conduc t adversarial testing of the State’s evidence, (2) failing to 6 oppose the State’s introduction of prior bad acts evidence, (3) subjecting him to an 7 unwarranted competency evaluation, (4) failing to file any pleadings, (5) generally 8 failing to engage in effectiv e advocacy. [MIO 3-5] Defendant argues that, as a result 9 of his counsel’s deficient performance, he spent over a year in pre trial confinement, 10 and was therefore presumptively prejudiced. [MIO 4] 11
{6} There is a two fold test for proving ineffective assistance of counsel; the 12 defendant must show (1) that counsel’s performance fell below that of a reasonably 13 competent attorney, and (2) that defendant was prejudiced by the deficient 14 performance. State v. Hester , 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. 15 The burden of proof is on defendant to prove both prongs. Id. “When an ineffective 16 assistance claim is first raised on direct app eal, we evaluate the f acts that are part of 17 the record. “If facts necessary to a full determination are not part of the record, an 18 ineffective assistance claim is more properly brought through a habeas corpus petition, 195 although an appellate court may remand a cas e for an evidentiary hearing if the 1 defendant makes a prima facie cas e of ineffective assistance.” State v. Roybal , 2 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. 3
{7} The record before us does not support De fendant’s contention that he received 4 ineffective assistance of counsel. We are unable, on this record, to determine whether 5 independent testing of the State’s evidence would have resulted infavorable evidence 6 for Defendant. However, we note that c ounsel’s alleged failure to adequately 7 investigate does not establish ineffectiv e assistance per se. Rather, Defendant is 8 required to demonstrate how pretrial inves tigation would have altered the course of 9 the proceedings. See State v. Telles , 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 10 845 (rejecting a claim of ineffective assist ance based on counsel’s alleged failure to 11 investigate). Mere speculation that testing would have altered the course of the 12 proceedings is insufficient, and the record before us contains no specifics. See 13 generally State v. Torres , 2005-NMCA-070, ¶ 25, 137 N.M. 607, 113 P.3d 877 14 (rejecting a claim of ineffective assist ance due to the defendant’s failure to 15 demonstrate with specificity how the defense was actually prejudiced). 16
{8} Defendant also fails to identify with any degree of specificity on what basis 17 motions should have been filed that were not, and Defendant fails to explain how he 18 was actually prejudiced by counsel’s failure to file motions. See In re Ernesto M. , 196 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is 1 not a showing of prejudice.”). We also note that trial counsel is not ineffective for 2 failure to make a motion that is not supported by the record. See State v. Chandler, 3 1995-NMCA-033, ¶ 35, 119 N.M . 727, 895 P.2d 249. As the record does not contain 4 a statement of the evidence at trial, we al so cannot determine whether the result of the 5 proceedings would have been different had counsel objected to introduction of prior 6 bad acts evidence. See State v. Martinez , 2007-NMCA-160, ¶ 19, 143 N.M. 96, 173 7 P.3d 18 (stating that if a defendant fails to show a reasonable probability that but for 8 counsel’s deficient performance the resu lt of the proceedings would have been 9 different then the presumption of eff ective assistance of counsel controls). 10
{9} Finally, we cannot determine on this reco rd whether defense counsel’s decision 11 to request competency evaluations was belo w the standard of a reasonably competent 12 attorney. We therefore hold that Defendant has failed to establish a prima facie case 13 of ineffective assi stance of counsel. See State v. Powers , 1990-NMCA-108, ¶¶ 5-7, 14 111 N.M. 10, 800 P.2d 1067 (stating that an insufficient factual basis precludes 15 appellate review of a claim of ineffectiv e assistance of counsel). However, although 16 Defendant has failed to estab lish a claim of ineffective a ssistance of counsel, we reach 17 this conclusion without prejudice to Defendant’s pursuit of habeas corpus proceedings 18 on this issue and the development of a factual record. See State v. Gonzales , 197 2007-NMSC-059, ¶ 16, 143 N.M. 25, 172 P.3d 162; see also State v. Baca , 1 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that 2 provides a basis for remanding to the trial court for an evidentiary hearing on 3 ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition 4 for writ of habeas corpus[.]”). 5
{10} For these reasons, we affirm. 6
{11} IT IS SO ORDERED. 7

_________ ___________ ____________ 8 TIMOTHY L. GARCIA, Judge 9 WE CONCUR: 10

_______________________________ 11 JONATHAN B. SUTIN, Judge 12

_______________________________ 13 M. MONICA ZAMORA, Judge 14