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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 28,017 9 STEPHANIE PERKINS, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 12 Joe Parker, District Judge 13 Gary K. King, Attorney General 14 Ann M. Harvey, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Carlos Ruiz de la Torre, A ssistant Appellate Defender 19 Santa Fe, NM 20 for Appellant 21

MEMORANDUM OPINION 22 CASTILLO, Judge. 232 Defendant Stephanie Perkin s appeals her jury convic tions for possession of a 1 controlled substance (methamphetamine) withintent to distribute and for possession 2 of drug paraphernalia. She challenges th e convictions on the following four grounds: 3 (1) her convictions are not supported by subs tantial evidence; (2) the district court 4 erred when it instructed the jury regarding the definition of possession; (3) the district 5 court should have granted a mi strial due to the officers’ failure to collect certain 6 evidence related to whether Defendant resi ded at the home where she was arrested; 7 and (4) ineffective assistance of counse l based on counsel’s failure to do certain 8 pretrial discovery relevant to whether Defendant lived at the home and to file 9 suppression motions. We affirm. 10 I. BACKGROUND 11 On April 20, 2005, police officers execu ted a search warrant at a home in 12 Clovis, looking for evidence that drugs were being sold there. While the search was 13 underway, Defendant arrived in a car and got out holding a soda cup and a Marlboro 14 cigarette pack. Officers came out of the home and handcuffed her, in the course of 15 which she put down the cup and the cigarette pack. A later search of the cigarette 16 pack revealed 1.7 grams of methamphetami ne. The search of the home turned up 17 numerous items alleged to be drug paraphernalia, so me of which contained 18 methamphetamine residue. One witness, Deputy Malin Parker, testified that 193 Defendant became upset and verbally abus ive and repeatedly used language asking 1 what the officers were doing in “her house” and that they should get out of “her 2 house.” Deputy Parker also testified that in one bedroom of the residence, he found 3 a New Mexico identification card for Defendant with an address different from the 4 home being searched. He also found pictures and mail, both of which led him to 5 believe that Defendant resided in the home. In addition to Defendant, the officers 6 encountered other persons in the home. Th ese persons were searched and allowed to 7 leave without giving statements. Additional facts will be develope d in the context of 8 the issues discussed. 9 II. SUBSTANTIAL EVIDENCE 10 Defendant argues that there was insu fficient evidence that she physically 11 possessed methamphetamine and constructiv ely possessed the drug paraphernalia in 12 the home. Defendant does not contest that drugs and drug paraphernalia were found 13 during the search of the residence. Rather, she argues that the State did not adequately 14 connect her to those items. First, Defendant contends that her possession of the 1.7 15 grams of methamphetamine in the Marlboro pack was not proved beyond a reasonable 16 doubt. Her second issue deals with construc tive possession. She claims that because 17 there was insufficient evidence to proveshe resided in the home, there was 18 insufficient evidence that the paraphern alia was hers. Along the same lines, 194 Defendant also takes issue with the evid ence regarding the other three persons whom 1 the officers found in the home atthe time of the search. Defendant argues that there 2 was an insufficient showing that these three persons did not have access to the rooms 3 where most of the evidence was found. We begin with our standard of review and 4 elements of the convictions. Then wewill address Defendant’s two arguments. 5 A. Standard of Review 6 “Substantial evidence is relevant evid ence that a reasonable mind might accept 7 as adequate to support a conclusion.” State v. Rojo , 1999-NMSC-001, ¶ 19, 126 N.M. 8 438, 971 P.2d 829 (filed 1998). Th e test to determine the sufficiency of evidence in 9 New Mexico is whether substantial evidence of either a direct or circumstantial nature 10 exists to support a verdict of guilt beyond a reasonable doubt with respect to every 11 element essential to a conviction. State v. Sutphin , 107 N.M. 126, 131, 753 P. 2d 12 1314, 1319 (1988). “This Court does not we igh the evidence and may not substitute 13 its judgment for that of the fact finder so long as there is sufficient evidence to support 14 the verdict.” Id. On appeal, the appellate court views the evidence in the light most 15 favorable to the verdict, re solving all conflicts and indul ging all reasonable inferences 16 in favor of the verdict. State v. Apodaca , 118 N.M. 762, 765-66, 887 P.2d 756, 759- 17 60 (1994). 18 B. Elements of the Convictions 195 Here Defendant was convicted of two crimes. As to possession of 1 methamphetamine with intent to distribute, the State had to prove that Defendant: (1) 2 had methamphetamine in her possession; (2) knew it was methamphetamine or 3 believed it to be methamphetamine; and (3) intended to transfer it to another. SeeUJI 4 14-3104 NMRA. Because the amount of methamphetamine seized was only 1.7 5 grams, the State had to prove the intentelement by proving that Defendant possessed 6 the paraphernalia which included items such as scales, baggies with the corner cut out, 7 measuring spoons, and other articles often used for distribution of drugs. To find 8 Defendant guilty of possession of drug paraphernalia, the State was required to prove 9 that Defendant: (1) possesse d drug paraphernalia; and (2 ) intended to use the drug 10 paraphernalia for the purpose of producing, processing, prep aring, testing, analyzing, 11 packing, re-packing, storing, containing, concealing, injecting, ingesting, or otherwise 12 introducing into the human body a controlled substance. SeeNMSA 1978, § 30-31- 13 25.1(A) (2001). For both offenses, the St ate also had to prove that the events 14 happened in New Mexico on or about the 20th day of April, 2005, an issue not in 15 dispute in this case. We be gin with the evidence regarding drugs in the cigarette pack. 16 C. Marlboro Pack 17 Defendant’s position is that there was insufficient evidence linking her to 18 methamphetamine in the cigarette pack. She argues that the evidence concerning 196 where the cigarette pack was found was conflicting, that there was no continuous 1 observation of the pack, and that there might have been more than one pack. 2 A review of the evidence presented at trial shows the following. Deputy David 3 Kube testified that Defendant set the ci garette pack on the ground in the course of 4 being handcuffed. Deputy Daniel Freeman similarly tes tified that Defendant placed 5 the pack on the ground while being handcuffed. He recalled there also being a lighter 6 and that Deputy Parker was the next pers on to pick up the cigarette pack. Deputy 7 Victor Rodriguez testified that Deputy Parker “retrieved a Marlboro cigarette pack 8 from near a trash can,” and that the trash can was “[o]utside the house by the front 9 steps.” 10 On cross-examination, Deputy Rodriguez testified that the cigarette pack was 11 “[k]ind of partially under, I wouldn’t say they were under the trash can,” and that 12 when Defendant was on the ground, “they were directly in front of her by the trash 13 can.” Deputy Rodriguez testified that th ere was no other trash around. Deputy Parker 14 testified that he saw the cigarette pack “on the ground” and aske d Deputies Kube and 15 Freeman where it came from. They said Defendant had been holding it and that she 16 put it on the ground. Deputy Parker also te stified—inconsistently with his testimony 17 that he had seen it on the ground—that he got information from other officers that 18 Deputy Freeman had set it on the porch. Deputy Parker opened the pack and found 197 the plastic bag with methamphetamine insi de. On cross-examination, Deputy Parker 1 again testified that he found the pack on the porch step, and he did not recall any trash 2 can being there. 3 While we agree with Defendant that there are differences in the officers’ 4 testimony regarding the cigarette pack, it is up to the jury to resolve factual 5 inconsistencies in testimony. State v. Morales , 2000-NMCA-046, ¶ 8, 129 N.M. 141, 6 2 P.3d 878. There was substantial eviden ce to support a conclu sion that Defendant 7 was holding the cigarette pack and put it down as she was being handcuffed. There 8 was no other trash around, and one or more o fficers were in the vicinity of the pack 9 during the relevant time. There is no suggestion of any means by which the pack in 10 evidence might have been substituted for the one Defendant was holding. There 11 appears to be no question that the substance found in the pack was methamphetamine. 12 Viewing this evidence in the light most favorable to the verdict, we conclude that 13 substantial evidence supported Defendant’s conviction for possession of 14 methamphetamine. Apodaca , 118 N.M. at 765-66, 887 P.2d at 759-60. 15 D. Constructive Possession 16 Possession of the drug paraphernalia wa s necessary to prove the element of 17 intent to distribute the methamphetamine. There appears to be no dispute that the 18 various items introduced into evidence constituted drug paraphernalia or that 198 possession of such items would establish intent to distribute as opposed to personal 1 use of the methamphetamine. Defendant ar gues that there was insufficient evidence 2 to prove possession because the State failed to prove (1) that she lived at the house, 3 and (2) that the items were in her possessi on as opposed to the possession of the other 4 persons present in the residence when the officers arrived. 5 As to who lived in the house, Deputy Parker testified that when Defendant 6 arrived at the residence, she “wanted to know why we were in her house, what were 7 we doing in her house. She repeated multiple times to get out of her house.” This was 8 an admission made by Defendant. Although sh e argues that the other officers did not 9 testify to hearing the admission and that the admission was not mentioned in any 10 police report, it is up to the jury to evaluate a witness’s credibility. State v. Fuentes , 11 2010-NMCA-027, ¶ 17, ___N.M. ___, 228 P.3d 1181. 12 Additionally, Deputy Parker testified that he found Defendant’s New Mexico 13 ID card in the east bedroom of the residen ce where some of the items of paraphernalia 14 were also found. He acknow ledged that the ID card had a different address on it than 15 the residence being searched. On cross- examination, Deputy Parker testified that 16 during earlier surveillance he observed Defendant and other persons going in or out. 17 He acknowledged that, during the search , he saw several pieces of mail with 18 Defendant’s and her husband’s or boyfriend’s nameon them, but he did not know 199 what address was on the mail. Deputy Parker also saw pictures of Defendant that led 1 him to believe the residence was hers, but he did not feel it was necessary to collect 2 them. Defendant’s admissions and the other testimony provide sufficient evidence to 3 support the jury’s conclusion that Defendant resided at the home that was searched. 4 The evidence also supports the conclu sion that Defendant constructively 5 possessed the drug paraphernalia. Deputy R odriguez searched a dresser in the east 6 bedroom where he found eight cut plastic baggies, also known as corner baggies, 7 which he testified are used for packaging na rcotics. Officer Riley Loomis, a probation 8 officer, testified that after entering the home, he went to the east bedroom, which he 9 believed was the master bedroom. In th e bathroom that was inside the master 10 bedroom, he saw in plain viewa set of Triton T-2 scales with white powdery residue 11 on them that field-tested positive for methamphetamine. In the master bathroom, 12 Officer Loomis also found: a metal spoon that field-tested positive for 13 methamphetamine; a black, zippered bag containing two measuring spoons with white 14 residue and a plastic baggie with white residue; and a tin containing a baggie with 15 marijuana seeds and stems inside and a pair of metal clamps with burned residue 16 consistent with marijuana use. 17 Three of the State’s witnesses testifie d concerning the other persons present at 18 the beginning of the search. Their testimony was inconsistent as to whether there 1910 were two or three persons present. Deputy Rodriguez testified that upon entry he 1 encountered a male and a female. He secured the male and Deputy Freeman secured 2 the female in the kitchen. Officer Loomis also testified that as he entered the home, 3 he encountered two persons immediately insi de. He did not speak to them. Deputy 4 Parker recalled that there was a male and tw o females present in the kitchen and living 5 area of the home. Th ey were read their Mirandarights and consented to be searched. 6 Deputy Parker wrote their names down and released them. 7 To prove either actual or constructive possession, the State must show that 8 Defendant had both knowle dge and control of th e drug paraphernalia. State v. Barber , 9 2004-NMSC-019, ¶ 27, 135 N.M. 621, 92 P. 3d 633. “Proximity alone does not 10 constitute possession.” State v. Garcia , 2005-NMSC-017, ¶ 13, 138 N.M. 1, 116 P.3d 11 72 (citing UJI 14-130 NMRA). “[C]onstructiv e possession is a legal fiction used to 12 expand possession and include those cases wh ere the inference th at there has been 13 possession at one time is exceedingly strong.” Barber , 2004-NMSC-019, ¶ 22 14 (internal quotation marks and citation omitted). “Constructive possession exists when 15 the defendant has know ledge of the presence of the drug and control over it.” State 16 v. Brietag , 108 N.M. 368, 370, 772 P.2d 898, 900 (Ct. App. 1989). “Where a 17 defendant is not in exclusive possession of the premises on which drugs are found, an 18 inference of constructive possession cannot be drawn unless there are incriminating 1911 statements or circumstances tending to support the inference.” Id. “Because 1 bedrooms are usually private areas of a house and dresser drawers are especially 2 private, evidence indicating soleoccupancy of a bedroom s upports a logical inference 3 of control and knowledge of the room’s contents by the usual occupier.” Id. (internal 4 quotation marks and citation omitted). 5 Although Defendant cites a number of cas es to support her argument that the 6 evidence was insufficient to prove possession of the paraphernalia, she primarily relies 7

on Brietagand State v. Maes , 2007-NMCA-089, 142 N.M. 276, 164 P.3d 975. In 8 Brietag , the defendant and other persons were seen coming and going from the 9 defendant’s rented house. Se ven or eight people, but not the defendant, were present 10 when the search began. A w itness testified that the defe ndant had been renting a room 11 from her elsewhere for about a month befo re the search. Prior surveillance had 12 established that some of the other persons had stayed all night at the defendant’s house 13 on occasion. One person stated that he had been staying there about a month. Various 14 drugs were found in several areas of the home. No evidence, such as personal 15 belongings, definitively linked the defendant to these areas, except that rent receipts 16 and electric bills in the defendant’s name and photographs of him with family 17 members were found in a bedroom where drugs were found. Various property 18 belonging to others and papers in other persons’ names were also found in the room. 1912 The State acknowledged that the defendant did not have exclusive possession of the 1 premises and that the premises were open and used by others. This Court 2 characterized the premises as a “crash pad” with in sufficient evidence that the 3 defendant alone used the bedroom. Id. at 370, 772 P.2d at 900. 4 In Maes , 2007-NMCA-089, ¶ 6, the defendant was present during a search of 5 a bedroom that revealed two bottlecaps w ith methamphetamine residue and a corner 6 of a baggie with traces of methamphetamine init. The defendant denied living in the 7 home. The officers found two pieces of mail addressed to the defe ndant at a different 8 address, but no other bills or personal papers. They also found women’s clothing in 9 the bedroom, but could not say it was the defendant’s. Relying on Brietag , this Court 10 concluded the evidence was insufficient and reversed the conviction. We pointed out 11 that “[t]he State’s theory of constructiv e possession—that [the d]efendant necessarily 12 controlled every item in the house of which she had knowledge—is not a correct 13 statement of the criminal law of constructive possession.” Maes , 2007-NMCA-089, 14 ¶ 21. 15 The question of possession is one of fact. While we agree that there are 16 similarities between the facts inthe present case and those in Brietagand Maes, the 17 differences are material and distinguish this case from Brietagand Maes . In the case 18 before us, the other persons present were encountered in the living area and kitchen 1913 of the home. Although there was no tes timony as to how long Defendant had been 1 absent, nothing indicates that she had beenaway for weeks as had the defendant in 2 Brietag . The fact that she arrived carrying onl y a soda cup and a pack of cigarettes 3 suggests that her absence was brief. Th e master bedroom and bathroom where the 4 paraphernalia was found also contained evidence, consisti ng of Defendant’s ID card, 5 mail, and photographs, indicating that the bedroom was hers. No testimony suggested 6 that the officers encountered an intermingl ed jumble of other persons’ personal items 7 as in Brietag , nor was there any eviden ce that the other persons present at the time of 8 the search or anyone else had ready access to the bedroom area. Unlike the defendant 9 in Maes , where the drug evidence consisted of tiny, easily overlooked items, 10 Defendant here could not helpbut be aware of the presen ce of the paraphernalia, some 11 of which was in plain view. 12 We conclude that substantial eviden ce supported a conclusion that Defendant 13 possessed drug paraphernalia, and that the nature of th e paraphernalia indicated that 14 Defendant intended to distribute methamphetamine. 15 III. JURY INSTRUCTION ON DEFINITION OF POSSESSION 16 Defendant argues that the district court failed to read a portion of the jury 17 instruction defining possession of a controlle d substance and that he read a portion of 18 the instruction that is inconsistent with Maes . Defendant acknowle dges that she did 1914 not object to the instruction at trial. “The standard of review we apply to jury 1 instructions depends on whether the issue ha s been preserved. If the error has been 2 preserved[,] we review the instructions for reversible error. If not, we review for 3 fundamental error.” State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 4 1134 (citations omitted). “The doctrine of fundamental error is to be resorted to in 5 criminal cases only for the protection of those whose innocence appears indisputably, 6 or open to such question that it would s hock the conscience to permit the conviction 7 to stand.” Barber , 2004-NMSC-019, ¶ 14 (internal quotation marks and citation 8 omitted). 9 UJI 14-3130 NMRA defines possession of a controlled substance. The first 10 sentence of the instruction sets forth the basic definition of possession. The court 11 must then decide which of three optional sentences following the basic instruction are 12 appropriate. SeeUJI 14-3130, Use note 2. The distri ct court modified the instruction 13 to include the drug paraphern alia in addition to the methamphetamine and included 14 the first two of the three optional sentences: 15 A person is in possession of methamphetamine or drug 16 paraphernalia when she knows it is on her person or in her presence, and 17 she exercises control over it. 18 Even if the methamphetamine or drug paraphernalia is not in her 19 physical presence, she is in possessi on if she knows where it is, and she 20 exercises control over it. 2115 Two or more people can have possession of methamphetamine or 1 drug paraphernalia at the same time. 2 Defendant argues that the district court s hould have added the third optional sentence, 3 which in unmodified form reads as follows: 4 A person’s presence in the vicin ity of the substance or his 5 knowledge of the existence or the lo cation of the substance, is not, by 6 itself, possession. 7 Id. Defendant argues that the evidence at trial raised an issue as to whether 8 constructive possession of the methamphetamineand paraphernalia could be attributed 9 to her, given the presence of the other persons in the residence. 10 In Barber , drugs and paraphernalia were f ound on top of a toilet in a motel 11 room bathroom. The defendant, who was al so found in the bathroom, stated that he 12 was there only to take a show er, that he saw the drugs but did not touch them, and that 13 there were four other admitted users of meth amphetamine in the vicinity of the room. 14 At trial, no instruction was given on th e definition of possession, even though the 15 committee commentary to UJI 14-3130 states that “[t]his instruction must be given if 16 possession is in issue.” Reviewing for fundamental error, the Supreme Court first 17 considered whether a reasonable juror woul d have been confused or misdirected by 18 the instruction on possession of drugs give n without an accompanying instruction 19 defining possession. Recognizing that the potential for confusion existed, the Court 20 concluded that there was no reasonable like lihood that the jury had been confused, 2116 given the presence of other evidence from wh ich inferences could be drawn that the 1 drugs and paraphernalia be longed to the defendant. Barber , 2004-NMSC-019, ¶¶ 19- 2 28. Barber also noted that any potential for confusion likel y favored the defendant; 3 without a definition of possession, a jury would more likely reason that a person does 4 not possess something just by being in its vicinity. See id. ¶ 26. 5 We find Barber controlling. Defendant contends that the failure to include the 6 third optional sentence confused and misdirectedthe jury as to the central issue in the 7 case—whether constructive possession of the paraphernalia and methamphetamine 8 could be attributed to her in spite of the existence of at least three individuals who 9 either lived at or enjoyed access to the home. We disagree. As in Barber , a number 10 of people including Defendant were in proximity to the drugs. Had this language been 11 included, the jury could have used it to exclude the individuals because mere 12 proximity to the paraphernalia or methamphetamine would have constituted 13 possession. As in Barber , any potential for confusion by excluding the language 14 would have likely favored Defendant. 15 Defendant also argues that the first optional sentence of UJI 14-3130, which 16 was included in the jury instructions in this case, is inconsistent with the following 17 sentence in Maes : 18 A defendant’s knowledge of the locati on of . . . another person’s stash of 19 drugs coupled with the physical abilityto exercise control over them in 2017 the owner’s absence does not justif y an inference of the defendant’s 1 constructive possession of drugs anymore than a defendant’s knowledge 2 of the location of a housemate’s stash of cash would justify an inference 3 that the defendant constructivel y possessed the housemate’s money in 4 the housemate’s absence. 5 Maes , 2007-NMCA-089, ¶ 21. We first point out that the quoted sentence was 6 immediately followed by this sentence: 7 The [s]tate’s theory of constructive possession—that [the d]efendant 8 necessarily controlled every item in the house of which she had 9 knowledge—is not a correct statement of the criminal law of 10 constructive possession, and we e xpressly disapprove of closing 11 arguments that incorporate this view of the law. 12 Id. Defendant’s reliance on the first quoted sentence above fails to distinguish 13 between “the physical ability to exercise c ontrol” and an actual exercise of control. 14 In many cases it would be physically possible for one person to go into another 15 person’s unlocked bedroom or other private area uninvited, but the bare possibility 16 that the person could access an item in this manner is insufficient to show constructive 17 possession. There must be evidence that the person actually exercised control over 18 the item, not just that he could have. 19 In Defendant’s case, the jury could infer that Defendant exercised control over 20 the drug paraphernalia in her bedroom and bathroom. There was not just the mere 21 possibility that she could go into the bedroom uninvited; there was evidence that the 22 bedroom was hers and that she actually exercised control over it. 2318 We conclude that nothing about UJI 14-3130 as modified in this case leaves 1 Defendant’s conviction “open to such ques tion that it would shock the conscience to 2 permit the conviction to stand.” Barber , 2004-NMSC-019, ¶ 14 (internal quotation 3 marks and citation omitted). 4 IV. OFFICERS’ FAILURE TO COLLECT CERTAIN EVIDENCE 5 Defendant argues that a mistrial should have been granted because the officers 6 executing the search failed to collect or otherwise preserve: (1) photographs, letters, 7 utility bills, or other items indicating that she lived there; (2) statements from the 8 persons who were present when the search began and were allowe d to leave; and (3) 9 fingerprints from the cigarette package. “A motion for a mistrial is addressed to the 10 sound discretion of the trial court and is only reviewable for an abuse of discretion.” 11 State v. Salazar , 1997-NMCA-088, ¶ 4, 124 N.M. 23, 946 P.2d 227 (internal quotation 12 marks and citation omitted). “An abuse of discretion is de fined as a decision that is 13 clearly against the logic and effect of the facts and circumstances before the [trial] 14 court.” Id. (alteration in original) (internal quotation marks and citation omitted). 15 In State v. Ware , 118 N.M. 319, 325-26, 881 P.2d 679, 685-86 (1994), our 16 Supreme Court adopted a two-part test fo r deciding whether to sanction the State 17 when police fail to gather evidence from a crime scene. 18 First, as a threshold matter the evidence that the State failed to gather 19 from the crime scene must be material to the defendant’s defense. 2019 Sanctions are not appropriate for failure to gather evidence immaterial 1 to the defendant’s defense. The determination of evidence materiality is 2 a question of law for the court. Evid ence is material only if there is a 3 reasonable probability that, had the evidence been [available] to the 4 defense, the result of the proceedi ng would have been different. A 5 reasonable probability is a probabilitysufficient to undermine confidence 6 in the outcome. 7 If the evidence is material to th e defendant’s defense, then the 8 conduct of the investigating officers is considered. If the trial court 9 determines that the failure to coll ect the evidence was done in bad faith, 10 in an attempt to prejudice the defendant’s case, then the trial court may 11 order the evidence suppressed. If it is determined that the officers were 12 grossly negligent in failing to gather the evidence—for example, by 13 acting directly contrary to standard police investigatory procedure—then 14 the trial court may instruct the jury that it can infer that the material 15 evidence not gathered fro m the crime scene would be unfavorable to the 16 State. When the failure to gather evidence is merely negligent, an 17 oversight, or done in good faith, sanc tions are inappropriate, but the 18 defendant can still examine the prosecution’s witnesses about the 19 deficiencies of the investigation and argue the investigation’s 20 shortcomings against the standard of reasonable doubt. 21 Id. (alteration in original) (internal quot ation marks and citations omitted). 22 We conclude that the first two of th e three categories of evidence of which 23 Defendant complains were material to her defense as that concept is defined in Ware

. 24 We conclude that the third item—fingerp rints from the cigarette package—were not 25 material because, as discussed above, th ere was eyewitness testimony that Defendant 26 had it in her hand and an adequate chain of custody to support a finding that the pack 27 introduced at trial was the same one Defendant had in her hand when she got out of 28 the car upon arriving at the residence. Th ere is no reasonable probability that having 2920 the fingerprints available to Defendant would have led to a different result. Rather, 1 it is likely that the fingerprint evidence w ould have been cumulative of the eyewitness 2 testimony. 3 The other two categories of evidence not gathered—items documenting that 4 Defendant resided at the address in question and statements from the other persons 5 present—were material, given the otherw ise circumstantial evidence that Defendant 6 lived there and that the other persons did not have access to the bedroom. The one 7 documentary item in evidence, the New Me xico ID card retrieved from the bedroom, 8 in fact had a different address on it, as wa s acknowledged at trial. The strength of the 9 probability that having the documentation and statements available would have led to 10 a different result depends, of course, on what they woul d have shown had they been 11 gathered. 12 In Ware , the missing evidence was a rock alle gedly used to strike the victim. 13 The investigators photographed the rock, butdid not gather it as evidence. The 14 defendant argued that this prevented him from being able to analyze the rock for 15 blood, hair, and fibers. The trial court suppressed the photographs and testimony 16 concerning the rock. The Supreme Court, using the two-part test set forth above, 17 concluded that the court erred in suppressing evidence of the rock, and that the 18 officers’ failure to collect the rock was “a judgment call and certainly not anything 1921 more than mere inadvertence or ordinarynegligence on the part of the police.” Id. at 1 326, 881 P.2d at 686. 2 We believe the actions of the officers inthe present case were also a judgment 3 call. From Deputy Parker’s poi nt of view, before he searched the bedroom he already 4 had evidence that Defendant livedat that address, as she made repeated statements to 5 the effect that the officers should get out of her house. Upon finding the ID card, he 6 also had evidence linking her to the master be droom. At trial, Deputy Parker testified 7 that he normally would have collected pieces of mail if he had not found an ID card 8 lying there. We view his decision that hehad sufficient evidence of residence without 9 taking Defendant’s personal mail and photographs to be a judgment call that we will 10 not second-guess. The same concept applies to the officers’ failure to obtain 11 statements from the persons w ho were present in the home. Deputy Parker testified 12 that the persons were secured, given Mirandawarnings, and interviewed. They 13 consented to be searched, in the course of which no contraband was found. At least 14 one of these persons was named in the police report, but the record does not indicate 15 whether defense counsel attempted to locate and interview this person. The record 16 also does not indicate what Deputy Parker’s interviews revealed, but we again decline 17 to second-guess his decision not to obtain formal statements. 18 We further observe, as the court pointed out in Ware , that where the failure to 1922 gather evidence is at worst negligent and thus sanctions are inappropriate, “the 1 defendant can still examine the prosecution’s witnesses about the deficiencies of the 2 investigation and argue the investigation’s shortcomings against the standard of 3 reasonable doubt.” Id. at 325-26, 881 P.2d at 685-86. The trial transcript indicates 4 that defense counsel vigorously cross-examin ed Deputy Parker in particular, inquiring 5 about several investigatory omissions thus pointing out potential weaknesses that 6 implicated reasonable doubt. 7 We conclude that the district court did not err in denying Defendant’s motion 8 for mistrial. 9 V. INEFFECTIVE ASSISTANCE OF COUNSEL 10 Defendant argues that she received ineff ective assistance of counsel because of 11 trial counsel’s deficiencies in two areas: (1) his failure to file suppression motions or 12 conduct discovery that would have supplie d grounds for such motions and (2) his 13 failure to introduce certain evidence tending to negate the assertion that Defendant 14 lived at the residence searched. Defendant claims that this evidence would have 15 shown that her son and a third person lived there and that Defendant lived at another 16 address. 17 Counsel is presumed competent. State v. Jacobs , 2000-NMSC-026, ¶ 48, 129 18 N.M. 448, 10 P.3d 127. 1923 To establish a prima facie case of in effective assistance of counsel, [the 1 d]efendant must show that (1) c ounsel’s performance was deficient in 2 that it fell below an objective standard of reasonableness; and (2) that 3 [the d]efendant suffered prejudice in that there is a reasonable probability 4 that, but for counsel’s unprofessional errors, the result of the proceeding 5 would have been different. 6 State v. Aker , 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (quoting Lytle v. 7 Jordan , 2001-NMSC-016, ¶¶ 26-27, 130 N.M. 198, 22 P.3d 666). “On appeal, we 8 will not second guess the trial strategy and tactics of the de fense counsel.” Lytle , 9 2001-NMSC-016, ¶ 43 (internal quotation marks and citation omitted). 10 Counsel representing Defendant at trial was not her original counsel. At a 11 motions hearing on November 13, 2006, about -three-and-a-half months before trial, 12 Defendant’s eventual trial counsel, Albert Granger, appeared telephonically and 13 informed the court that Defendant had a c onflict with her original counsel and had 14 asked Granger to represent her. In the course of this h earing, the prosecutor informed 15 the court that Defendant’s previous counsel had considered filing a motion to 16 suppress, but after interviewing the confidential informant in the case, former counsel 17 told the prosecutor that he did not believesuch a motion would have any merit and 18 that he would not file it. Defendant does not explai n why her original counsel’s 19 conclusion after interviewing the informant was incorrect, or what she or Granger 20 would have learned from the documents, photogr aphs, or other persons present in the 21 home that would have made a motion to suppress newly appropriate. In essence, 2224 Granger decided not to duplicate parts of the investigation done by original counsel. 1 Regarding the documents and photographs, as discussed above, we conclude that 2 Deputy Parker’s failure to gather them as evidence did not require a mistrial. Once 3 the search was done without the documents or photographs having been gathered as 4 evidence, there is nothing defense counsel could have done after the fact to obtain 5 them for trial. None of this strikes us as a performance “[falli ng] below an objective 6 standard of reasonableness,” and we theref ore conclude that Defendant’s ineffective 7 assistance claim fails the first prong of the test set forth in Aker and numerous other 8

cases. See Aker , 2005-NMCA-063, ¶ 34. 9 Defendant also argues that defense couns el failed to introduce evidence that her 10 son lived at the residence, that Defendant lived at another address, and that a third 11 party also lived at the residence. Except for the evidence at trial that Defendant’s ID 12 card showed a different address, the record before us contains nothing either 13 supporting or negating these allegations. 14 When an ineffective assi stance claim is first rais ed on direct appeal, we 15 evaluate the facts that are part of th e record. If facts necessary to a full 16 determination are not part of the record, an ineffective assistance claim 17 is more properly brought through a habeas corpus petition, although an 18 appellate court may remand a case fo r an evidentiary hearing if the 19 defendant makes a prima facie case of ineffective assistance. 20 State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M . 657, 54 P.3d 61. Having 21 concluded that Defendant has not made a prima facie case of ineffective assistance, 2225 we also conclude that her claim that counsel overlooked additional evidence would 1 be better pursued in a habeas corpus petition. 2 VI. CONCLUSION 3 For the reasons set forth above, we affirm Defendant’s convictions for 4 possession of a controlled substance (methamphetamine) with intent to distribute and 5 possession of drug paraphernalia. 6 IT IS SO ORDERED. 7

________________________________ 8 CELIA FOY CASTILLO, Judge 9 WE CONCUR: 10

__________________________________ 11 CYNTHIA A. FRY, Chief Judge 12

__________________________________ 13 TIMOTHY L. GARCIA, Judge 14