This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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. 31,760 4 JUSTIN D. NESBIT, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Jane Shuler-Gray, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline L. Cooper, Chief Public Defender 12 Karl Erich Martell, Assi stant Appellate Defender 13 for Appellant 14

MEMORANDUM OPINION 15 GARCIA, Judge. 162 Defendant appeals his conviction for aggravated battery (deadly weapon), 1 raising seven issues on appeal. We proposed to affirm in a notice of proposed 2 summary disposition, and De fendant has filed a memorandum in opposition. Having 3 considered the arguments raised by Defe ndant in his memorandum and remaining 4 unpersuaded, we affi rm his conviction. 5 We turn to the first three issues rais ed by Defendant in his docketing statement. 6 Defendant claims that: (1) the district c ourt erred in granting the prosecution’s motion 7 to excuse Juror #19 over Defendant’s objection; (2) there was insufficient evidence 8 to support his conviction for aggravated battery (deadly weapon); and (3) he was 9 improperly impeached with uns worn, out-of-court statements. [DS 16] In our notice 10 of proposed summary disposition, we proposed to affirm on all of these issues. In his 11 memorandum in opposition, Defendant reite rates his arguments, but he fails to 12 challenge the analysis contained in our notice or to add any new arguments or 13 authority that might lead us to question our proposed disposition. [MIO 2-5] 14 Therefore, for the reasons set forth in our previous notice of proposed summary 15 disposition, we affirm on Defendant’s first three issues. 16 As his fourth issue, Defendant cl aimed that the prosecutor committed 17 misconduct by improperly impeaching Defendant with Defendant’s own statements 18 made before trial. [DS 16] He also cl aimed that the prosecutor committed misconduct 193 by implying to the jury during cross examin ation and then attemp ting to argue during 1 closing, that Defendant must be lying b ecause he exercised his fundamental right to 2 confront the evidence against him and to appear at his own trial. [DS 16-17] 3 As to the alleged improper impeachment, we proposed to affirm and to hold that 4 the prosecution did not improperly impeach De fendant. We proposed to affirm for the 5 reasons set forth in our analysis of De fendant’s third issu e discussing why the 6 admission of Defendant’s prior inconsistent statements was not in error. In his 7 memorandum in opposition, Defendant fails to challenge our proposed disposition on 8 this issue. [MIO 6-7] Therefore, for the reasons discussed in our notice of proposed 9 summary disposition on issue three, we hol d that the prosecution did not engage in 10 misconduct by improperly impeaching Defendant with Defendant’s own statements 11 made before trial. 12 As to the prosecutor’s allegedly improper comment during closing that 13 Defendant conformed his testimony to that of the other witnesses [DS 16-17], in our 14 notice we acknowledged that the prosecuto r’s comment was improper to the extent 15 Defendant has a right to attend his own trial and be present during the testimony of 16 other witnesses. [MIO 7; DS 15] N onetheless, we proposed to affirm because 17 Defendant objected to the statement, the district court sustained his objection, and the 18 district court instructed the prosecuto r to confine his remarks to Defendant’s 194 inconsistent statements made before trial. [MIO 7; DS 15] Wewere not persuaded 1 that the prosecutor’s isolated error in attempting to discuss Defendant’s presence in 2 the courtroom throughout the trial constituted sufficiently prejudicial error to warrant 3 reversal. See State v. Allen , 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728 (“An 4 isolated, minor impropriety ordinarily is not sufficient to warrant reversal, because a 5 fair trial is not necessarily a perfect one [.]” (internal quotati on marks and citations 6 omitted)). 7 In his memorandum in opposition, Defendant fails to indicate why the district 8 court’s action in sustaining his objection and instructing the prosecutor to refrain from 9 such comments was not sufficient to cure any minor prejudice. [MIO 7] Thus we 10 affirm on this issue because the prosecutor had a right to point out Defendant’s 11 inconsistent statements and the prosecutor’s improper comment during closing was 12 not sufficiently prejudicial to warrant reversal or retrial. See id. ; State v. Duffy , 13 1998-NMSC-014, ¶ 46, 126 N.M. 132, 967 P.2d 807 (holding that, in reviewing a 14 prosecutor’s improprieties, we consider wh ether they “had such a persuasive and 15 prejudicial effect on the jury’s verdict that the defendant was deprived of a fair trial”). 16 As the fifth issue in his docketing st atement and again in his memorandum in 17 opposition, Defendant claims his trial counselwas ineffective. [MIO 7-10; DS 17] 18 “To establish a prima facie case of ineff ective assistance of counsel, Defendant must 195 show that (1) counsel’s performance was de ficient in that it ‘fell below an objective 1 standard of reasonableness;’ and (2) that Defendant suffered prejudice in that there is 2 ‘a reasonable probability that, but for counsel ’s unprofessional errors, the result of the 3 proceeding would have been different.’” State v. Aker , 2005-NMCA-063, ¶ 34, 137 4 N.M. 561, 113 P.3d 384 (quoting Lytle v. Jordan , 2001-NMSC-016, ¶¶ 26-27, 130 5 N.M. 198, 22 P.3d 666 (citation omitted)). 6 In our notice, we proposed to affirm because Defendant failed to demonstrate 7 either that counsel’s performance was defi cient or that he suffered any prejudice due 8 to any perceived errors. See id. In his memorandum in opposition, Defendant again 9 contends that he was denied effective a ssistance and raises this contention pursuant 10

to State v. Franklin , 78 N.M. 127, 129, 428 P. 2d 982, 984 (1967), and State v. Boyer , 11 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985)

. [MIO 9] However, he fails 12 to rebut any of the analysis contained inour proposed disposition. [MIO 7-10] He 13 also acknowledges that his claims of ineff ective assistance were not developed below, 14 and thus he failed to establish a prima facie case of ineff ective assistance. See State 15 v. Telles , 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (stating that 16 “[w]ithout a record, we cannotconsider Defendant’s claim of ineffective assistance 17 of counsel on direct appeal”). 186 Despite the lack of eviden ce in the record, Defendant urges us to remand for an 1 evidentiary hearing concerning his allegations. [MIO 9] He claims that, despite the 2 lack of evidence, failure to remand woul d not comport with judicial economy given 3 that his appeal is already before this Court, citing to Varela v. State , 115 N.M. 586, 4 588, 855 P.2d 1050, 1052 (1993), in support of his contention. [MIO 9] We are 5 unpersuaded. 6
In Varela , our Supreme Court considered whether the district court had 7 wrongfully determined that it did not havejurisdiction to consider the defendant’s 8 ineffective assistance claim resulting in the district court’s refusal to consider the 9 merits of the defendant’s appeal from metropolitan court. See id. at 588-590, 855 P.2d 10 at 1052-1054. The holding in Varela “[is] unique to the particularly complex 11 procedural posture of that case” and does not warrant reconsideration of our proposed 12 disposition in this matter. State v. Hosteen , 1996-NMCA-084, ¶ 8, 122 N.M. 228, 923 13 P.2d 595, aff’d, 1997-NMSC-063, 124 N.M. 402, 951 P.2d 619 (1997). 14 Based on Defendant’s failure to establis h a prima facie case of ineffective 15 assistance of counsel, we declin e to consider this issue on direct appeal or to remand 16 to the district court for an evidentiary hearing on this matter. See id. ¶¶ 8-9 (declining 17 to remand to the district court for an evid entiary hearing when the defendant failed to 18 establish a prima facie case of ineffectiv e assistance of counsel). However, we 197 recognize that Defendant may raise his ine ffective assistance claims pursuant to a 1 habeas corpus proceeding. [MIO 9-10] See State v. Martinez , 1996-NMCA-109, 2 ¶ 25, 122 N.M. 476, 927 P.2d 31 (recognizing th at “[t]his Court has expressed its 3 preference for habeas corpus proceedings over remand when the record on appeal 4 does not establish a prima facie case of ineffective assistance of counsel”). 5 As his sixth and seventh issues, Defendant claims that fundamental and 6 cumulative errors require reversal of his c onviction. [MIO 10-11] For the reasons set 7 forth in our notice of proposed summary disposition, we disagree and affirm on these 8 issues. 9 CONCLUSION 10 For the reasons set forth above as we ll as those set forth in our notice of 11 proposed summary disposition, we affirm Defendant’s conviction. 12 IT IS SO ORDERED. 13

14 TIMOTHY L. GARCIA, Judge 15 WE CONCUR: 16

17 CELIA FOY CASTILLO, Chief Judge 188 1 LINDA M. VANZI, Judge 2