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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 29,762 9 NICHOLAS TRUJILLO, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 12 John W. Pope, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Kathleen T. Baldridge, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 WECHSLER, Judge. 222 Defendant appeals his felony convicti on for aggravated assault upon a peace 1 officer (deadly weapon) and his misdemeanor conviction for resisting, evading, or 2 obstructing an officer. The notice proposed to affirm, and Defendant filed a timely 3 memorandum in opposition pursuant to a granted motion for extension of time. We 4 remain unpersuaded by Defendant’s arguments and therefore affirm. 5 Sufficiency of the Evidence 6 Defendant continues to argue that there was insufficient evidence to support his 7 convictions for aggravated assault upon a peace officer (deadly weapon) and for 8 resisting, evading, or obstructing an officer. [DS 8; MIO 7] Defendant refers to State 9 v. Franklin , 78 N.M. 127, 428 P.2d 982 (1967), andState v. Boyer, 103 N.M. 655, 712 10 P.2d 1 (Ct. App. 1985), in support of his argument. [MIO 10] 11 We review the evidence to determine “whether substantial evidence of either 12 a direct or circumstantial nature exis ts to support a verdict of guilt beyond a 13 reasonable doubt with respect to every element essential to a conviction.” State v. 14 Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, “[w]e 15 view the evidence in the light most favorableto supporting the verdict and resolve all 16 conflicts and indulge all inferences in favor of upholding the verdict.” State v. 17 Hernandez , 115 N.M. 6, 26, 846 P.2d 312, 332 (1993). We do not re-weigh the 18 evidence nor substitute our judgment for that of the factfinder, so long as there is 193 sufficient evidence to support the verdict. Sutphin , 107 N.M. at 131, 753 P.2d at 1 1319. 2 We first address Defendant’s conviction for resisting, evading, or obstructing 3 an officer. This conviction requires findings that Defendant intentionally fled and 4 attempted to evade or evaded an officer with the knowledge that the officer was 5 attempting to apprehend or arrest him. [RP 33; MIO 8] See NMSA 1978, § 30-22- 6 1(B) (1981). 7 The facts provide that probation officers Barbara King and Gilbert Romero 8 arrived at Defendant’s house to conduct a “field call.” [DS 2; MIO 1-2] Probation 9 officer King testified that she observed an empty box of beer and an empty beer bottle 10 on the kitchen counter. [DS 3; MIO 2] Probation officer Romero additionally 11 testified that he observed Defendant ’s eyes to be red and watery. [DS 5; MIO 4] 12 Based on the empty beer bottles and Defendant’s appearance, the probation officers 13 administered a breath test to Defendant. [DS 3; MIO 2] When the breath test results 14 indicated the presence of alcohol [DS 5; MIO 4] , the probation officers testified that 15 they told Defendant that he would betaken into custody based on his probation 16 violation. [DS 3, 5; MIO 3-4, 8] According to probation officer King, Defendant 17 responded, “[n]o, I’m not going.” [DS 3; MIO 3] Probation officer King testified 18 that probation officer Romero told Defendant numerous times to place his hands 194 behind his back [DS 3] and that probation officer Ki ng attempted to place Defendant 1 into handcuffs by approaching him from the side and grabbing his wrist. [DS 3, 5; 2 MIO 3] 3 In response to her attempt to handc uff Defendant, probation officer King 4 testified that Defendant yanked his hand away from her [DS 3; MIO 3] and then 5 stepped toward probation officer Romero in a “combative manner.” [DS 3; MIO 3, 6 9] On cross-examination, probation offi cer King testified that, in her opinion, 7 Defendant’s stance indicated that he was going to resist arrest and that he was backing 8 away from probation officer Romero. [DS 4; MIO 3] Probation officer Romero 9 similarly testified that Defendant statedthat he was not goi ng to go to jail and 10 “stepped back about a step or two in kind of like a combative stance,” [MIO 4, 9] with 11 one foot in front of the other and his arms to the side. [DS 5; MIO 4] In response to 12 Defendant’s stance, probation officer Romero pepper-sprayed Defendant. [DS 3, 5; 13 MIO 3-4] The probation officers testified that Defendant then ran to the back yard, 14 with probation officer Romero in pursuit. [DS 3, 5; MIO 3] 15 We hold that the foregoing facts support Defendant’s convic tion for resisting, 16 evading, or obstructing an officer. See State v. Sparks , 102 N.M. 317, 320, 694 P.2d 17 1382, 1385 (Ct. App. 1985) (defining substantial evidence as that evidence that a 18 reasonable person would consider adequate to support a de fendant’s conviction). In 195 short, the jury could reas onably view the foregoing evidence to be such that the 1 probation officers were acting in the lawf ul discharge of their duties and that 2 Defendant, with the knowledge that officers were attempting to arrest and apprehend 3 him, fled and attempted to evade the officers. 4 We next address Defendant’s convic tion for aggravated assault upon a peace 5 officer (deadly weapon). This conviction requires findings that Defendant unlawfully 6 assaulted or struck at a peace officer witha deadly weapon while the officer was in 7 the lawful discharge of the officer’s duties. [RP 34; MIO 8] SeeNMSA 1978, § 30- 8 22-22(A)(1) (1971). 9 The facts provide that after running to the back yard while being pursued by 10 probation officer Romero, Defendant got into his truck and begin to back out of the 11 driveway. [DS 5; MIO 3, 5] Probation officer Romero te stified that one of the 12 truck’s windows was partially open [DS 5; MIO 3, 5] and that he yelled for 13 Defendant to stop. [DS 5; MIO 5] Probation officer Romero further testified that 14 Defendant’s truck accelerated as it was exiting the driveway [DS 5; MIO 5] and that 15 he had to jump against his car [DS 6; MIO 5] as Defendant continued to back out of 16 the driveway even though he was yelling for Defendant to stop. [DS 6; MIO 5] 17 Probation officer Romero testified that he wa s afraid that he wa s going to get run over 18 and forced into traffic on nearby River Road or that his legs would be pinned against 196 his car. [DS 6; MIO 5, 9] Consistent with the fore going testimony, probation officer 1 King testified that she saw De fendant’s truck back out of the narrow driveway at an 2 increasingly high rate of speed and almost hit probation officer Romero. [DS 3; MIO 3 3] Probation officer King further testified that probation officer Romero was forced 4 to jump onto the trunk of his probation and parole vehicle toavoid being hit by 5 Defendant’s truck. [DS 3; MIO 3] 6 We hold that the foregoing facts support Defendant’s conviction for aggravated 7 assault upon a peace officer (deadly weapon). See State v. Sparks , 102 N.M. at 320, 8 694 P.2d at 1385 (defining substantial eviden ce as that evidence that a reasonable 9 person would consider adequate to support a defendant’s conviction) . In this regard, 10 we believe that a jury could reasonably vi ew the foregoing evidence to be such that 11 probation officer Romero was in the lawfuldischarge of his duties when Defendant 12 unlawfully assaulted him by almost running into him with his truck, which under these 13 circumstances was used as a deadly weapon. 14 In assessing the sufficiency of evidence for Defendant’s convictions, we 15 recognize evidence that the probation officer s were engaged to each other and lived 16 together [DS 3, 4; MIO 5] , and understand Defendant to argue that this suggests that 17 their testimony was not credible because “they . . . each had an opportunity to hear 18 each other’s version of the events.” [DS 3, 4; MIO 5] It was a matter for the jury, 197 however, to assess the credibility of the probation officers. See State v. Salas , 1999- 1 NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the 2 factfinder to resolve any conflict in the te stimony of the witnesses and to determine 3 where the weight and credib ility lies). Moreover, although Defendant asserts that he 4 did not have a “combative stance” and thatuse of the pepper spray was unwarranted 5 [DS 6] , it was the jury’s prerogative to wei gh the testimony of the witnesses and 6 conclude that probation officer Romero reasonably viewed Defendant’s stance as 7 threatening, thereby meriting use of the pepper spray. 8 Lastly, we acknowledge the testimony of Defendant’s friend, witness Terry 9 Saiz, which indicates that Defendant backed out of the driveway because probation 10 officer Romero was attempting to mace him through the cracked window [DS 7; MIO 11 6-7, 9] , and that probation officer Romero was not at risk of being hit by Defendant. 12 [DS 7-8; MIO 7, 9] The jury, however, as factfinder could reasonably disbelieve this 13 version of the events. See State v. Foster, 1999-NMSC-007, ¶ 42, 126 N.M. 646, 974 14 P.2d 140 (recognizing that it is up to the jury to weigh any contradictory evidence); 15 Sutphin , 107 N.M. at 131, 753 P.2d at 1319 (hol ding that the factfinder may reject 16 defendant’s version of events). 17 Ineffective Assistance of Counsel 18 Defendant continues to argue that his trial counsel was ineffective. [DS 8; 198 MIO 10] Defendant again refers to Franklinand Boyer in support of his argument. 1 [DS 9; MIO 11] Our review of the facts and record proper gives no indication that 2 counsel’s performance fell below that of a reasonably competent attorney or that 3 Defendant was prejudiced by any deficient performance. See State v. Aker, 2005- 4 NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (p roviding that it is the defendant’s 5 burden to establish a prima f acie case of ineffective assistance of counsel). Whether 6 or not Defendant had prior dealings with officers [MIO 11] is not a matter of record; 7 nonetheless, trial counsel’s decision to not cross-examine officers about any prior 8 dealings with Defendant [MIO 11] is a matter of trial strategy that we will not second 9
guess. See State v. Martinez , 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 10 (expressing a “preference for habeas corpus proceedings over remand when the record 11 on appeal does not establish a prima facie cas e of ineffective assistance of counsel”); 12 see also Lytle v. Jordan , 2001-NMSC-016, ¶ 43, 130 N.M . 198, 22 P.3d 666 (stating 13 that “[o]n appeal, we will not second guess the trial strategy and tactics of the defense 14 counsel” (internal quotation marks and citation omitted)). Because the presumption 15 of competency of counsel, see State v. Jacobs , 2000-NMSC-026, ¶ 48, 129 N.M. 448, 16 10 P.3d 127, has not been overcome, we affirm. 17 Based on the foregoing discussion, weaffirm Defendant’s convictions. 18 IT IS SO ORDERED. 199 ________________ ________________ 1 JAMES J. WECHSLER, Judge 2

WE CONCUR: 3

__________________________________ 4 ROBERT E. ROBLES, Judge 5

__________________________________ 6 LINDA M. VANZI, Judge 7