This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the cita tion of unpublished memorandum opinions.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 file d 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 vs. No. 31,768 4 CHRISTOPHER GARCIA, 5 Defendant-Appellant. 6
APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 7 Abigail Aragon, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline L. Cooper, Chief Public Defender 12 Allison H. Jaramillo, Assist ant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15
MEMORANDUM OPINION 16 GARCIA, Judge. 172 Defendant appeals his convi ction for aggravated batte ry with a deadly weapon. 1 In our notice, we proposed to affirm, conc luding that there was sufficient evidence to 2 support the conviction. Defendant has timely responded and moved to amend the 3 docketing statement to include two new issu es. We have considered his arguments 4 and not being persuaded, we deny the mo tion to amend and affirm the conviction. 5 In his motion to amend the docketing statement, Defendant contends that he 6 was denied effective assistance of counse l because of an alleged conflict of his 7 defense counsel. The record indicates th at Defendant waived the conflict. [RP 70] 8 In the event that Defendant may have other facts that he wants to develop regarding 9 this issue, he may do so in a habeas petition. See State v. Martinez , 1996-NMCA-109, 10 ¶ 25, 122 N.M. 476, 927 P.2d 31 (expressing a preference for habeas proceedings 11 where the record on appeal does not estab lish a prima facie showing of ineffective 12 assistance of counsel). 13 The second new issue Defendant seeks to raise concerns the district court’s 14 refusal to dismiss the case based on the fa ilure of the State to preserve physical 15 evidence. Our case law is clear that we re view this issue for an abuse of discretion, 16 State v. Pacheco , 2008-NMCA-131, ¶ 27, 145 N.M. 40, 193 P.3d 587, and that the 17 district court is given two alternatives to d eal with lost evidence: (1) exclusion of all 18 evidence which the lost evidence might have impeached, or (2) admission with full 193 disclosure of the loss and its relevance and import. State v. Chouinard , 96 N.M. 658, 1 663, 634 P.2d 680, 685 (1981). Here, the di strict court refused to dismiss and 2 admitted the evidence subject to cross-ex amination. Thus, there was no abuse of 3 discretion and no basis for reversal. 4 Finally, Defendant continues to argue that the evidence was insufficient to 5 support the conviction. As we pointed out in our notice, this was clearly a case of 6 conflicting evidence, which is left to the f act-finder to resolve. Here, the jury found 7 that Defendant had cut the Victim during th eir fight. We conclude that the evidence 8 was sufficient to support that finding. 9 For the reasons stated herein and in the notice of proposed disposition, we 10 affirm. 11 IT IS SO ORDERED
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13 TIMOTHY L. GARCIA, Judge 14
WE CONCUR: 15

16 CELIA FOY CASTILLO, Chief Judge 174 1 RODERICK T. KENNEDY, Judge 2