This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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. 31,712 4 ALEXIS GONZALES-FEGUEREDO, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Kenneth H. Martinez, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 Francine A. Baca-Chavez, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Acting Chief Public Defender 14 Carlos Ruiz de la Torre, A ssistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 GARCIA, Judge. 192 {1} Defendant appeals from his conviction fo r criminal sexual penetration in the 1 second degree, contrary to NMSA 1978, Section 30-9-11(D) (2003, amended 2009). 2 On appeal, Defendant argues that the distri ct court erred in: (1) excluding evidence of 3 Victim’s prior sexual history; (2) denying his request for a mistake of fact jury 4 instruction regarding Defendant ’s knowledge of Victim’s age; (3) refusing to grant a 5 mistrial, or alternatively, to allow rebuttal testimony regarding a prior bad act of 6 Victim; (4) admitting evidence of Victim’s pregnancy; and (5) denying his motion for 7 directed verdict. Defendant further allege s that he received ineffective assistance of 8 counsel. We affirm. 9 BACKGROUND 10

{2} On May 25, 2007, Victim spent the nightat her Aunt’s house. Defendant, the 11 long-time boyfriend of Victim’s Aunt, also spent the night. During the night, 12 Defendant went into the living room where Victim was sleeping, pulled off her pants, 13 placed his hand over her mouth, and proceeded to penetrate her vaginally. At the time, 14 Victim was sixteen years old, and Defendantwas approximately forty. Following trial, 15 a jury convicted Defendant of criminal se xual penetration of a minor between the ages 16 of thirteen and eighteen, a second degree felony offense. Defendant timely appealed 17 his conviction to this Court. Because this is a memorandum opinion and because the 18 parties are familiar with the factual and procedural background in this case, we will 19 include any further factual informati on in each issue as it is discussed. 203 DISCUSSION 1 I. Evidentiary rulings 2

{3} Defendant appeals se veral of the district court’s evidentiary rulings. “We 3 review the admission of evidence under an abuse of discretion standard and will not 4 reverse in the absence of a clear abuse.” State v. Sarracino , 1998-NMSC-022, ¶ 20, 5 125 N.M. 511, 964 P.2d 72. “We cannot say the [d istrict] court abused its discretion 6 by its ruling unless we can characterize it as clearly untenable or not justified by 7 reason.” State v. Rojo , 1999-NMSC-001, ¶ 41, 126 N.M . 438, 971 P.2d 829 (internal 8 quotation marks and citation omitted). 9 A. Victim’s Prior Sexual Conduct 10

{4} We first address Defendant’s argument that the district court erred in denying 11 his Rule 11-413 NMRA (2010) (current version at Rule 11-412 NMRA (2012)) 12 motion to present evidence that Victim had a history of sneaking out of her house at 13 night to engage in sexual activity with older men. The district court ruled that the 14 requested prior sexual conduct evidence wa s not relevant and was inadmissible. 15 Defendant contends that the proposed evid ence was relevant to establish Victim’s 16 motive to fabricate rape in order to hide her sexual activ ity from her parents. 17

{5} NMSA 1978, Section 30-9-16(A) (1993) precludes evidence of a rape victim’s 18 past sexual conduct, unless “the evidence is material to the case and . . . its 19 inflammatory or prejudicial nature does not outweigh its probative value.” Id. Rule 204 11-413(A) (2010) is consistent with this st atutory counterpart. We consider whether 1 the district court should have reasonably excluded the evidence after considering a 2 five-factor test: “(1) whether there is a clear showing that the complainant committed 3 the prior acts; (2) whether the circumstances of the prior acts closely resemble those 4 of the present case; (3) whether the prior acts are clearly re levant to a material issue, 5 such as identity, intent, or bias; (4) wh ether the evidence is necessary to the 6 defendant’s case; [and] (5) whether the probative value of the evidence outweighs its 7 prejudicial effect.” See State v. Johnson , 1997-NMSC-036, ¶ 27, 123 N.M. 640, 944 8 P.2d 869. 9

{6} During the pretrial hearing on the Stat e’s motion in limine, Defendant argued 10 that the evidence was material and relevant on the issue of cred ibility because Victim 11 gave a pretrial interview claiming “she was a virgin on the date of [the] incident[,]” 12 but that evidence of her “sneaking out” and having encounters with “a boyfriend” 13 established that Victim “ knew more about the details of sex than she claimed.” The 14 State responded that none of the pretrial testimony, witness statements, interviews, 15 transcripts or tapes established “that the [V]ictim was promiscuous, [or] that the 16 [V]icitm was not a virgin.” “As a matter of fact, all th e evidence from the witnesses 17 that has been obtained is exactly the c ontrary, that [Victim] was not a promiscuous 18 person.” Defendant responded th at “she would sneak out of her house, that she would 19 not come back . . . until the earlier hours of the morning, [and] that she would brag 205 about these instances.” “We can put on several witnesses that say there were many 1 prior acts, if the State want s us to.” But Defendant’s carefully worded allegation that 2 interviewed witnesses would te stify that Victim snuck out of her house at night to see 3 men does not establish evidence of sexual activity, or promiscuity, or substantively 4 rebut Victim’s pretrial statement that she was a virgin on the date of the incident. See 5 id. (noting that rape shield laws were designed to restrictattempts to show a victim 6 had consented on this occasion because she had consented on other occasions). 7

{7} If Defendant was intending to make an offer of proof to the contrary, he failed 8 to do so, and he failed to identify any w itness statement to support his insinuations. 9 The nature of the prior encounters that a ssume sexual activity were neither sufficiently 10 developed to show that they were materially relevant to any credibility determination 11 nor sufficiently probative so as to overcome the prejudicial effect on a victim of 12 sexual assault that Rule 11-413(A) (2010) was implemented to protect. This is 13 especially significant given that the State alleged forcible rape, not a consensual 14 sexual encounter between De fendant and the sixteen-year-old Victim. Having failed 15 to present a sufficient argument that the previous incidents involved sexual activity 16 or similar circumstances to th e incident in the present appeal, the district court did not 17 abuse its discretion when it determined thatDefendant had not met the five-factor test 18 set forth in Johnson and granted the State’s motion in limine. 19

{8} Defendant also alleges that Victim’s prior activities of sneaking out of the house 206 to have late night encounters with men was relevant to establish Victim’s motive to 1 fabricate the incident of fo rcible rape by Defendant. “Mo tive to fabricate is a theory 2 of relevance that does implicate the right of confrontation. A [dis trict] court would be 3 entitled to determine that the prejudicial e ffect of prior sexual conduct evidence . . . 4 would not outweigh the probative value of evidence of a motive to fabricate.” 5 Johnson , 1997-NMSC-036, ¶ 29. As previously discussed, Defendant failed to show 6 the necessary relevance of Victim’s prior acts of sneaking out of the house at night to 7 see men so as to establish sexual promis cuity or to attack Victim’s credibility. Id. ¶ 8 32 (“[I]n order to enable the [district] court to perform its role in identifying a theory 9 of relevance prior to balancing probative value against prejudice, a defendant must 10 show sufficient facts to support a particular theory of relevance.”). 11

{9} The record demonstrates that Defendant’s theory of relevance was based solely 12 on the credibility of Victim’s testimony about forcible rape, and the district court was 13 never asked to rule upon whether the alle ged promiscuous activity was relevant to 14 support the defense of fabrication. See State v. Stephen F. , 2008-NMSC-037, ¶ 12, 15 144 N.M. 360, 188 P.3d 84 (holding that the rape shield laws were designed to 16 prohibit admitting evidence of prior sexual act s where the defendant’s theory is that 17 the victim “fabricated the rape charge b ecause she did not want to be punished, and 18 her fear of parental punishment arises fro m the mere fact of engaging in premarital 19 sex, not from any purported similarity between the type of premarital sex”). Even so, 207 in order to admit such evidence, Defe ndant still would have been required to 1 demonstrate that Victim’s prior conduct of sneaking out of the house was both 2 material and that its prejudicial effect does not outweigh its probative value. Johnson , 3 1997-NMSC-036, ¶ 41. Based on the record be fore us, we conclude that Defendant 4 failed to make the necessary showing of relevancy regarding a fabrication defense. 5 As such, the district court did not abuse its discretion in holding that the evidence of 6 Victim sneaking out of the house was irrelevant and inadmissible. See Stephen F. , 7 2008-NMSC-037, ¶ 8 (reiterating that the appe llate courts review a district court’s 8 decision to the then-current version of Rule 11-413 under an abuse of discretion 9 standard). 10 B. Victim’s Pregnancy 11

{10} Defendant argues that it was error for th e district court to permit the State to 12 present testimony that Defendant was the fath er of Victim’s child without an adequate 13 scientific foundation to establish that the ch ild was conceived on th e date of the rape. 14 Defendant further asserts that this evidence was irrelevant , confusing, or misleading 15 under Rule 11-401 NMRA and more prejudicial than probative under Rules 11-403 16 and 11-404(B) NMRA. The State responds thatVictim’s pregnanc y was relevant to 17 the crime charged and that the date of c onception was a disputed factual question for 18 the jury to consider and resolve. 19

{11} On appeal, Defendant’s argument is not well-developed and fails to put forward 208 any specific authority addressing the merits of this argument. See State v. Aragon , 1 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (recognizing that it is the 2 appellant’s burden to clearly demonstrate error on appeal). Defendant’s argument 3 begins with two relevancy obj ections and quickly transitions into a “relation-back” 4 argument about establishing a scientific foundation for the date when a baby is 5 conceived. However, the undisputed facts es tablish that the sexual assault was alleged 6 to have occurred at the e nd of May 2007, the baby was born in January 2008, and the 7 baby was approximately six weeks premature. The paternity test was offered to 8 establish that Defendant was the father of Victim’s baby. The court recognized that 9 the date of the alleged c onception was “within the ballp ark” of a reasonable time 10 frame to correspond to the date of birth and that the jury, using common sense, must 11 determine whether the child was conceive d on any particular date at issue. See Mott 12 v. Sun Country Garden Prod., Inc. , 1995-NMCA-066, ¶ 34, 120 N.M. 261, 901 P.2d 13 192 (“[I]f the fact in issue is within the ken of the average lay juror, expert opinion 14 testimony is not necessary.”). 15

{12} Effectively, Defendant argues that e xpert testimony is required in order to 16 establish the typical nine-month gestati on period and the jury cannot rely on its 17 common knowledge to make this factual determination. Convers ely, without expert 18 testimony, Defendant asserts th at any potential relation-back from the date of birth to 19 the date of the alleged rape cannot be adequately established and is legally 209 impermissible. Defendant faile d to provide the district court or this Court with any 1 authority for his argument that expert testimony is required to establish a typical nine2 month gestation period and that the jury cannot rely on its common knowledge to 3 make this factual determination. State v. Vandever , 2013-NMCA-002, ¶ 19, 292 P.3d 4 476 (“When a party does not cite authorityto support an argument, we may assume 5 no such authority exists.”), cert. denied , 2012-NMCERT-011, 297 P.3d 1226; see 6 State v. Clifford , 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 (“When a 7 criminal conviction is being challenged, counsel should properly present [the appellate 8 courts] with the issues, arguments, and proper authority.”). We therefore hold that the 9 district court properly acted within its di scretion when it allowed the jury to use its 10 common knowledge to determine whether Vic tim’s child was born within a gestation 11 period that would reasonably relateback to the date in question. 12 Rebuttal Testimony Regarding Victim’s Prior Bad Conduct 13

{13} Defendant contends that the testim ony elicited during the State’s cross14 examination of a defense witness inferred th at the witness had previously had sex with 15 Defendant for money. Defendant argues that the district court should have granted his 16 motion for mistrial after the State elicited this testimony of Defendant’s prior bad acts 17 and inappropriate conduct. De fendant alternatively assert s that he should have been 18 permitted to counter this evidence with Rule 11-404(B) testimony to establish prior 19 bad act evidence of Victim. Like evidentiaryrulings, we review a district court’s 2010 denial of a motion for mistrial under an abuse of discretion standard. See State v. 1 Gonzales , 2000-NMSC-028, ¶ 35, 129 N.M. 556, 11 P.3d 131, overruled on other 2 grounds by State v. Tollardo , 2012-NMSC-008, 275 P.3d 110. 3

{14} During direct examination of Victim’s cousin Regina S., Defendant elicited 4 testimony that Victim had a reputation inthe community for being untruthful. On 5 cross-examination of Regina, the State attempted to show witness bias by asking about 6 previous contact between Regina and Defendant. Regina mentioned a specific incident 7 where Defendant and she were in a car toge ther, and she asked Defendant to lend her 8 money. Defendant did not object to this testimony by Regina during cross9 examination. Later, Defendant argued th at this testimony by Regina implied that 10 Defendant was paying her for se x and was inadmissible pursuant to the district court’s 11 pretrial ruling that addressed Defendant’s sexual infidelity. As a result, defense 12 counsel requested a mistrial. Defense counsel alternatively argued that, on redirect 13 examination of Regina, the district court should permit Defendant to elicit testimony 14 of a specific incident where Victim allege dly had sex with Defendant at a motel while 15 Regina babysat their child in the bathroom. 16

{15} The district court denied the motion fo r mistrial and did not allow defense 17 counsel to question Regina regarding the single incident where Victim allegedly 18 prostituted herself to Defendant at a motel after their child was born. The court had 19 previously explained that this line of questioning was “entirely inappropriate” and 2011 “that its probative value is nil.” The court th en gave a limiting instruction that the jury 1 was to entirely disregard the testimony and evidence presented regarding the incident 2 where Regina was found in a vehicle with Defendant. 3

{16} Defendant contends on appeal that “the testimony in question was highly 4 prejudicial as it placed within consideration of the jury the idea that [Defendant] may 5 have paid for sex with another young woman.” Defendant argues that this testimony 6 was improperly and intentionally elicited by the State. 7

{17} Our review of the record reveals no impropriety with the State’s line of 8 questioning to Regina. To show possible bias, the State elicited limited testimony 9 from Regina that she had tried to borro w money from Defendant. Specifically, the 10 prosecutor never asked Regina if she had sexual relations with Defe ndant or made any 11 reference to any exchange of money for sex. If the implication that Regina and 12 Defendant had a sexual relati onship was raised at all, it was raised by defense 13 counsel’s redirect examination question as king Regina if she had ever met Defendant 14 at a motel. If the contested testimony should not have been admitted, the district 15 court’s limiting instruction to disregard th e testimony was sufficient to alleviate any 16 prejudicial effect arising from its previous admission. State v. Vialpando , 1979- 17 NMCA-083, ¶ 25, 93 N.M. 289, 599 P.2d 1086 (“New Mexi co has frequently held 18 that a prompt admonition from the court to the jury to disregard and not consider 19 inadmissible evidence sufficiently cures any prejudicial effect which otherwise might 2012 result.”); see State v. Foster , 1998-NMCA-163, ¶¶ 23-25, 126 N.M. 177, 967 P.2d 1 852. The district court did not abuse its discretion when it determined that the 2 previous testimony by Regina had not irreparabl y tainted the jury so as to require a 3 mistrial. 4

{18} Defendant’s secondary argument is that th e district court erred when it refused 5 to allow him to “fight fire with fire” by rebutting the contested testimony regarding 6 Defendant’s possible sexual encounter w ith Regina through testimony of Victim’s 7 prior sexual acts. This argument is equallywithout merit. The doctrine of curative 8 admissibility allows the admission of otherwise inadmissible evidence when the 9 evidence is used to rebut and c ounterbalance incompetent evidence. State v. Ruiz , 10 2001-NMCA-097, ¶ 47, 131 N.M. 241, 34 P.3d 630. On appeal , Defendant has failed 11 to demonstrate how unrelated evidence of Victim’s alleged subs equent sexual conduct 12 would counterbalance any inference that Reg ina may have attempted to borrow money 13 from Defendant in exchange for sex. As such, the district court did not abuse its 14 discretion when it refused to allow Defendant to elicit potential testimony regarding 15 Victim’s otherwise inadmissible sexual conduct. Ruizwould not be the appropriate 16 procedural remedy to apply under the circ umstances in this case. The curative 17 instruction given by the court was adequateto address any alleged impropriety that 18 the State may have drawn out during Regina’s testimony. The district court did not 19 abuse its discretion in refusing the prejudi cial rebuttal testimony and giving a curative 2013 instruction. 1 II. Mistake of Fact Jury Instruction 2

{19} Defendant argues that the district court erred in not providing the jury with a 3 mistake of fact instruction where a defense witness testif ied that he believed Victim 4 was eighteen years old. In light of this alleged error, Defendant requests a new trial. 5 This Court reviews de novo a district court’ s denial of a requested jury instruction. 6 State v. Lucero , 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143. 7

{20} Defense witness, Berzeyahir Molina testif ied that he met Victim when she was 8 sixteen. At that time, Molina believed Victim was eighteen because of her attitude and 9 physical appearance. Victim never toldMolina that she was eighteen. Based on 10 Molina’s testimony, Defendant requested a mistake of fact jury instruction based on 11 a reasonable belief that Victim was eighteen. The State argued that, absent any 12 evidence as to Defendant’s belief regarding Victim’s ag e, Molina’s belief could not 13 be transferred to Defendant. The district court denied the requested mistake of fact 14 instruction. After reviewing State v. Gonzales , 1983-NMCA-041, 99 N.M. 734, 663 15 P.2d 710, the court explained that “[t]here is no evidence in the record that would 16 support giving an instruction on mistake of fact because the only evidence in the 17 record is that [Victim] in this matter was awakened and forciblysexually assaulted.” 18 The district court further reasoned that a mi stake of fact instruction would “raise a 19 false issue before the jury” b ecause, even if Victim appearedto be of legal age, there 2014 was no evidence that the sexual encounter was consensual. 1

{21} Defendant argues that the rule in New Me xico is that if there is any evidence 2 to support his theory of defense, he is en titled to an appropriate instruction. However, 3 Defendant relied solely on the fact that, prior to the incident involving Defendant, 4 Molina believed Victim to be eighteen. De spite his failure to testify, Defendant 5 contends that this testimony was sufficient to support his own belief that Victim was 6 eighteen years old at the time of the sexual encounter. See Perez v. State , 7 1990-NMSC-115, ¶ 11, 111 N.M. 160, 803 P.2d 249 (recognizing that criminal sexual 8 penetration of a child between the ages of thirteen and sixteen was not a strict liability 9 crime and that a defendant’s ignorance or mistake of fact about a child’s age is a 10 potential defense). 11

{22} “A defendant is entitled to a jury instruction that supports his theory of the 12 defense only if the instructi on is supported by the evidence.” State v. Cavanaugh , 13 1993-NMCA-152, ¶ 12, 116 N.M. 826, 867 P.2d 1208. Not only does this lack of 14 evidence regarding Defendant’s own belief of Victim’s ag e fail to support the giving 15 of a mistake of fact instruction, but “the only evidence in the reco rd is that [Victim] 16 in this matter was awakened and forciblysexually assaulted” without her consent. 17 Defendant’s asserted mistake of fact woul d serve as a defense to justify his conduct 18 only if Defendant and Victim had a consensual sexual encounter. Gonzales , 19 1983-NMCA-041, ¶ 14 (“To entitle himself to aninstruction on mistake of fact, there 2015 must be some evidence that atthe time in question, [the] defendant entertained a belief 1 of fact that, if true, would make his conduct lawful .” (emphasis added)). Even if 2 evidence had been offered to show that Defendant had a reasonable belief in 2007 that 3 Victim was of an age where she could le gally consent to a sexual encounter, the 4 district court was not required to instruct the jury on a mistake of fact instruction 5 because there was no evidence presented thatthe sexual encounter in this case was 6 consensual. The district court did not err in refusing Defendant’s mistake of fact 7 instruction. 8 III. Directed Verdict 9

{23} We next address Defendant’s argument that the district court should have 10 granted his motion for directed verdict. “The question presented by a directed verdict 11 motion is whether there was substan tial evidence to support the charge.” State v. 12 Coleman , 2011-NMCA-087, ¶ 19, 150 N.M. 622, 264 P.3d 523 (internal quotation 13 marks and citation omitted). “Specifically, we inquire whether substantial evidence 14 exists of either a direct or circumstantial nature to support a verdict of guilty beyond 15 a reasonable doubt with respect to each element of the crime.” Id. (internal quotation 16 marks and citation omitted). “We do not we igh evidence or substitute our judgment 17 for that of the [district] court so long as the jury was presented with such relevant 18 evidence as a reasonable mind might accept as adequate to support its verdict.” Id. 19 (alteration, internal quotati on marks, and citation omitted) . We review the evidence 2016 in the light most favorable to the prevailing party. Rojo , 1999-NMSC-001, ¶ 19. 1

{24} To convict Defendant of criminal sexual penetration of a child thirteen to 2 eighteen by the use of coercion by a person in a position of authority, the State had to 3 prove, in relevant part, that Defendant was able to exercise undue influence over 4 Victim by reason of his relationship with her, that Defendant used this authority to 5 coerce Victim to submit to sexual contact , and that Defendant unlawfully caused 6 Victim to engage in sexual intercourse. Defendant asserts on appeal that there was 7 insufficient evidence that Defendant caused Vi ctim to engage in sexual intercourse or 8 that he had a position of authority over her and used his position to force her to have 9 intercourse. However, Defendant’s appellate argument ignores the evidence favorable 10 to his conviction and refers only to evidence presented through the testimony of 11 defense witnesses. 12

{25} Defendant’s argument essentially states that the district court should have 13 resolved the parties’ conflicting assertions of fact in his favor. But we defer to the 14 district court to resolve the conflicts inthe evidence, to weigh the facts, and to 15 determine the credibility of the witnesses. Buckingham v. Ryan , 1998-NMCA-012, ¶ 16 10, 124 N.M. 498, 953 P.2d 33 (“[W]hen there is a conflict in the testimony, we defer 17 to the trier of fact.”); State v. Roybal , 1992-NMCA-114, ¶ 9, 115 N.M. 27, 846 P.2d 18 333 (“It was for the [district] court as f act[]finder to resolve any conflict in the 19 testimony of the witnesses and to determine where the weight and credibility lay.”). 2017 Contrary evidence does not provide a basis fo r reversal because the factfinder is free 1 to reject Defendant’s version of the facts. Rojo , 1999-NMSC-001, ¶ 19. The evidence 2 presented established that Victim first met Defendant when she was a baby, that he 3 attended important family events throughout Victim’s childhood, that he was like an 4 uncle to Victim, and considered part of the family by Victim’s mother and her 5 husband. Viewing this evidence in the light most favorable to the jury’s verdict, we 6 conclude that the evidence was sufficient to establish each of the contested elements 7 of criminal sexual penetration and the denial of Defendant’s motion for a directed 8 verdict of acquittal. 9

{26} The district court was in the best pos ition to evaluate the evidence presented 10 and the credibility of the parties, and the record reflects that substantial evidence 11 supported Defendant’s conviction. We, therefore, affirm the district court’s denial of 12 Defendant’s motion for directed verdict. 13 IV. Ineffective Assistance of Counsel 14

{27} Pursuant to State v. Franklin , 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, 15 and State v. Boyer , 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, Defendant argues 16 that he received ineffective assistance of defense counsel. “The test for ineffective 17 assistance of counsel is whether defense counsel exercised the skill of a reasonably 18 competent attorney.” State v. Aker , 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 19 384. Establishing a prima facie case of ineffective assistance of counsel requires a 2018 defendant to show that: “(1) counsel’s performance was defi cient in that it fell below 1 an objective standard of reasonableness; and (2) that [the d]efendant suffered 2 prejudice in that there is a reasonable probability that, butfor counsel’s unprofessional 3 errors, the result of the proceedi ng would have been different.” Id. (internal quotation 4 marks and citation omitted). We do not hold that ineffective assistance of counsel 5 exists if there is a plausible, rational trial strategy or tactic to explain counsel’s 6 conduct. See State v. Bernal , 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289; 7 State v. Roybal , 2002-NMSC-027, ¶ 21, 132 N.M . 657, 54 P.3d 61. “When an 8 ineffective assistance claim is first raised on direct appeal , we evaluate the facts that 9 are part of the record. If facts necessary to a full determination are not part of the 10 record, an ineffective a ssistance claim is more properly brought through a habeas 11 corpus petition[.]” Roybal , 2002-NMSC-027, ¶ 19. Remand for an evidentiary hearing 12 is the proper remedy only when the defendant makes a prima facie case of ineffective 13 assistance. Id. 14

{28} Defendant concedes on appeal that there are not enough facts in the record to 15 evaluate this claim of ineffective assi stance of counsel. As such, an evidentiary 16 hearing is not an appropriate remedy becauseDefendant has failed to establish a prima 17 facie case of ineffective a ssistance of counsel based on the district court record. See 18 id. Defendant must pursue the issue, if at all, in a collateral hab eas corpus proceeding. 19 See State v. Martinez , 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (“This 2019 Court has expressed its preference for ha beas corpus proceedings over remand when 1 the record on appeal does not establish a prima facie case of ineffective assistance of 2 counsel.”); see also State v. Baca , 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 3 776 (“A record on appeal that provides a basi s for remanding to the [district] court for 4 an evidentiary hearing on ineffective assist ance of counsel is rare. Ordinarily, such 5 claims are heard on petition for writ of habeas corpus . . . .”). We therefore deny this 6 claim on direct appeal. 7 III. CONCLUSION 8

{29} For the foregoing reasons, we affirm Defendant’s conviction. 9

{30} IT IS SO ORDERED. 10

___________________________________ 11 TIMOTHY L. GARCIA, Judge 12

WE CONCUR: 13

____________________________ 14 JONATHAN B. SUTIN, Judge 15

____________________________ 16 MICHAEL E. VIGIL, Judge 17