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 Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 from 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. 31,486 4 JEFFREY SWART, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 7 John A. Dean, Jr., District Judge 8 Gary K. King, Attorney General 9 Olga Serafimova, Assist ant Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Acting Chief Public Defender 13 Allison H. Jaramillo, Assist ant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16MEMORANDUM OPINION 1 ZAMORA, Judge. 2 {1} Defendant appeals his convi ction of two counts of false imprisonment and one 3 count of battery stemming from a confrontation with two individuals attempting to 4 repossess his vehicle. We affirm. 5 BACKGROUND 6 {2} The charges arose out of Defendant’s confrontation with Clinton and Lindi 7 Ishmael (Victims) who had entered Defendant’s property to repossess a vehicle. 8 Defendant locked the gates to his property and moved another vehicle in front of 9 Victims’ tow truck, thereby preventing th em from leaving. Defendant testified he 10 believed he had the authorityto detain Victims until law enforcement arrived because 11 Mr. Ishmael had backed his tow truck into Defendant and Mr. Ishmael threw pea 12 gravel at Defendant’s head. Victims deny that they backed the tow truck into 13 Defendant or threw gravel at him. 14 {3} A jury convicted Defendant of two c ounts of false imprisonment and one count 15 of battery. Defendant raises five issues on appeal: (1) wh ether the district court erred 16 in not submitting a mistake-of-fact instructi on to the jury and in submitting a general 17 intent instruction; (2) whether the eviden ce was sufficient to find Defendant guilty of 18 false imprisonment; (3) whether the eviden ce was sufficient to find Defendant guilty 192 of battery; (4) whether the court committed fundamental error when it failed to 1 instruct the jury on citizen’s arrest; and (5) whether Defendant received ineffective 2 assistance of counsel when his attorney faile d to request a citizen’s arrest instruction 3 and failed to adequately investigate the case and interview witnesses prior to trial. We 4 address each argument in turn. 5 DISCUSSION 6 Issue 1: Jury Instructions on Mistake-of-Fact, General Intent 7 {4} Defendant argues that the district court erred in denying his request for a jury 8 instruction on mistake-of-fact. He also contends that the district court further erred 9 by including false imprisonment as one of the crimes covered by the general intent 10 instruction. 11 A. Mistake-of-Fact Instruction 12 {5} We must first address the State’s argument that Defendant failed to preserve 13 this issue for appeal. Although Defendant requested the jury instruction, it was not 14 in the record. “The primary purpose of any objection to an instruction is, of course, 15 to alert the mind of the judge to the claime d error contained in it, to the end that he 16 may correct it.” State v. Compton , 57 N.M. 227, 236, 257 P.2d 915, 921 (1953). 17 Consequently, “[t]imely objections to improper instructions must be made or error, 183 if any, will be regarded as waived in every case.” State v. Garcia , 46 N.M. 302, 307, 1 128 P.2d 459, 462 (1942); see also State v. Cunningham , 2000-NMSC-009, ¶ 11, 128 2 N.M. 711, 998 P.2d 176 (“By not invoking the [dis trict] court’s discretion with regard 3 to the propriety of the jury instructions, [the defendant] effec tively waived appellate 4 review of this issue.”). 5 {6} Defendant’s counsel argued for the mi stake-of-fact instruction based on the 6 theory that Defendant believe d he had the authority to restrain or confine Victims 7 because he thought a battery had been committed against him and that he was 8 mistaken over the fact of whether he had authority to restrain Victims until police 9 arrived. The State argued that any such mistaken belief is c overed by an element of 10 the jury instruction for false imprisonment. The district court responded: “Let’s do 11 it that way. Let’s look at the elements of false imprisonment and see where we are.” 12 He then read the following jury instructi ons for both victims, which eventually were 13 submitted to the jury, for both counts of false imprisonment. 14 For you to find [D]efendant guilty of false imprisonment as 15 charged in Count 1, the [S]tate must prove to your satisfaction beyond 16 a reasonable doubt each of the fo llowing elements of the crime: 17 1. [D]efendant restrained or c onfined Clinton Ishmael (Lindi 18 Ishmael) against his (her) will; 194 2. [D]efendant knew that he had no authority to restrain or confine 1 Clinton Ishmael (Lindi Ishmael); 2 3. This happened in New Mexi co on or about the 14th day of 3 January[] 2010. 4 {7} After pointing out that the second element sufficed in addressing Defendant’s 5 mistake-of-fact concerns, the following exchange took place between the district court 6 and defense counsel: 7 Judge: So I think the State [to prove false imprisonment] has to prove 8 that he had no authority. So I thi nk that would allow you to argue that 9 he had authority. 10 Defense counsel: Okay, I agree. 11 Judge: I’m going to leave it the way it is. 12 Defense counsel: I think I can argue it both ways. 13 Judge: I’ll allow you to argue that he thought he could restrain them 14 because— 15 Defense counsel: I just like one better. 16 Judge: Yeah. I’ll let y ou argue it. . . . I think [the false imprisonment 17 instruction is] a good instruction. 18 {8} Thus, Defendant’s counsel agreed with the court that the false imprisonment 19 instruction sufficiently addressed the ques tion of whether Defendant had the authority 20 to detain Victims and that the mistake-of-f act instruction was not needed. In the case 215 before us, rather than object, defense couns el agreed when the judge rejected the 1 mistake-of-fact instruction as cumulative. We conclude that Defendant has waived 2 any appellate review of the question of whether the district court erred by not 3 submitting a mistake-of-fact instruction to the jury. 4 B. General Intent Instruction 5 {9} We note that there is no indication in th e record to show that Defendant made 6 this argument to the district court. Such a lack of preservation dictates the standard 7 of review we employ. 8 The standard of review we apply to jury instructions depends on 9 whether the issue has been preserved. If the error has been preserved we 10 review the instructions for reversib le error. If not, we review for 11 fundamental error. Under both standards we seek to determine whether 12 a reasonable juror would have been confused or misdirected by the jury 13 instruction. 14 State v. Benally , 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal 15 quotation marks and citations omitted). “[I]nstructions must be considered as a whole, 16 and not singly[.]” State v. Parish , 118 N.M. 39, 41, 878 P.2d 988, 990 (1994) 17 (internal quotation marks and citation omitted). The doctrine of fundamental error 18 exists only “for the protection of those whose innocence appears indisputabl[e], or 19 open to such question that it would shock the conscience to permit the conviction to 20 stand.” Cunningham , 2000-NMSC-009, ¶ 13 (internal quotation marks and citation 216 omitted). We will reverse for fundamental error when the foundation or basis of a 1 defendant’s case or an essential right in a defense is affected. Id. 2 {10} Here, Defendant’s innocence does not appear indisputable; nor would his 3 conviction shock the conscience of the court or represent a “miscarriage of justice.” 4 State v. Maestas , 2007-NMSC-001, ¶ 8, 140 N.M. 836, 149 P.3d 933. Defendant was 5 permitted at trial to argue his theory that he thought he had th e authority to detain 6 Victims, and the burden was on the State toprove that Defendant did not have such 7 authority. The jury heard both arguments and chose to reject Defendant’s version of 8 events. We find that there was no fundamental error. 9 {11} This Court has also been asked to determine whether a reasonable juror would 10 have found the general intent instructi on along with the two false imprisonment 11 instructions contradictory and confusing. In addition to the instruction on false 12 imprisonment, the district court submitted the following general intent instruction to 13 the jury: 14 In addition to the other elements of false imprisonment (2 counts) 15 and battery, the [S]tate must prove to your satisfaction beyond a 16 reasonable doubt that . . . [D]efendant acted intentionally when he 17 committed the crime. A person acts intentionally when he purposely 18 does an act which the law declares tobe a crime, even though he may not 19 know that his act is unlawful. Wh ether [D]efendant acted intentionally 20 may be inferred from all of the surrounding circumstances, such as the 217 manner in which he acts, the means used, his conduct[,] and any 1 statements made by him. 2 {12} False imprisonment is the intentional confining or restraining of another 3 without that person’s consent and withthe knowledge on the part of the one 4 restraining that he or she has no au thority to confine or restrain. See NMSA 1978, § 5 30-4-3 (1963). The general intent instruc tion submitted to the jury properly conveys 6 the requirement of an intentional act and comported with UJI 14-141 NMRA. The 7 first use note for that instruc tion states: “This instructi on must be used with every 8 crime except for the relatively few crimes not requiring criminal intent or those crimes 9 in which the intent is specified in the statute or instruction.” Id

. 10 {13} Jurors were instructed on the elements of false imprisonment and were further 11 instructed that they were required to fi nd that Defendant acted intentionally. The 12 general intent instruction stated at the out set that the jury had to find that Defendant 13 had to have acted intentionally “[i]n addition to the other elements of false 14 imprisonment[.]” 15 {14} We reject Defendant’s position that the general intent instruction was 16 inconsistent with the false imprisonment instructions. There is no rational basis to the 17 argument that the combination of the false imprisonment instructions and the general 18 intent instruction would create confusion for a reasonable juror, and there is no 198 evidence of jury confusion here resulting from what were, in fact, complementary 1 instructions. 2 Issues 2 and 3: Sufficiency of the Evid ence to Convict fo r False Imprisonment 3 and Battery 4 A. False Imprisonment 5 {15} One of the issues before the jury wa s whether Defendant acted with knowledge 6 that he did not have lawful authority to detain Victims. Whether there is sufficient 7 evidence to support a conviction is a ques tion of law that we review de novo. State 8 v. Neatherlin , 2007-NMCA-035, ¶ 8, 141 N.M. 328, 154 P.3d 703. “We must 9 determine [whether] substantial evidence exists to support a verdict of guilt beyond 10 a reasonable doubt with respect to each element necessary for conviction.” Id . “In 11 reviewing the sufficiency of the evidence, [the appellate courts] must view the 12 evidence in the light most favorable to the guilty verdict, indulging all reasonable 13 inferences and resolving all conflicts in the evidence in favor of the verdict.” 14 Cunningham , 2000-NMSC-009, ¶ 26. Both directand circumstantial evidence may 15 be considered when determining whether there is substantial ev idence to establish an 16 element of a particular crime. State v. Kent , 2006-NMCA-134, ¶ 10, 140 N.M. 606, 17 145 P.3d 86. In so doing, the appellatecourts do not reweigh the evidence or 18 substitute our judgment for that of the jury. State v. Treadway , 2006-NMSC-008, ¶ 199 7, 139 N.M. 167, 130 P.3d 746. “Substantial evidence is relevantevidence that a 1 reasonable mind might accept as adequate to support a conclusion.” State v. Rojo , 2 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 3 {16} Under the facts of this case, the St ate had to prove beyond a reasonable doubt 4 that Defendant restrained or confined Vic tims against their wills; that Defendant knew 5 that he had no authority to restrain or c onfine Victims; and that it happened in New 6 Mexico on or about the 14th day of January, 2010. SeeUJI 14-401 NMRA. Sheriff’s 7 Deputy Floyd Foutz and Defendant both testified that Defendant acknowledged and 8 admitted that he confined Victims within his property. There was no dispute on the 9 date of the incident. Victims affirmed thatDefendant had closed and locked the gate, 10 which prevented them from leaving. We c onclude that substantial evidence supported 11 the element of restraining or confining Victims against their wills. 12 {17} As to the second element of false imprisonment, Defendant asserted that he 13 believed he had authority to restrain or confine Victims. There was conflicting 14 testimony about the attempted repossession pres ented at trial. Defendant contended 15 that Victims did not have th e paperwork to justify the repossession of his vehicle; that 16 Victims were trespassing; and that he had been assaulted twice when Mr. Ishmael 17 threw pea gravel at him and when Mr. Ishm ael hit Defendant with the tow lift of his 1810 truck. Victims contended th at they provided the pertin ent paperwork to Defendant’s 1 wife, who in turn provided it to Defendant. According to Victims, Defendant 2 crumpled it as he walked back to his house, then took the papers in the house with the 3 can of pepper spray. A title loan co mpany representative brought over additional 4 copies of the paperwork. Victims also claim that they entered the property through 5 an unlocked open gate. There was also te stimony that Defendant was irate and yelling 6 during the altercation. Defendant pepper sprayed Mr. Ishmael two times. 7 {18} Deputy Foutz found inconsistencies with Defendant’s account of what 8 happened during the repossession of his vehicle and statedthat the evidence found at 9 the scene did not corroborate Defendant’s version of the story. Deputy Foutz did not 10 charge Victims with any crimes. There werealso credibility issues raised regarding 11 Defendant’s account that Mr. Ishmael had a 14- to 16-inch pipe in his tow truck with 12 which he threatened Defendant; which gateVictims drove through; whether Victims 13 broke the lock on the gate; whether Defendant’s wife was s hoved; and whether 14 Defendant’s wife’s coat was thrown to the ground. The car was ultimately 15 repossessed. 16 {19} Consequently, in reaching its verdict, the jury was required to evaluate the 17 credibility of each witness, determine the weight given to each witness’s testimony, 1811 consider the admitted exhibits, and reach its verdict accordingly. The jury had 1 sufficient basis on which to infer that Defendant knew he did not have authority to 2 detain Victims. We theref ore conclude that there was sufficient evidence to support 3 Defendant’s convictions for false imprisonment. 4 B. Battery 5 {20} Defendant argues that he acted in sel f-defense and that the State failed to 6 present sufficient evidence to support a battery conviction. Defendant then proceeds 7 to direct this Court’s attention to State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 8 686, 986 P.2d 482, which discusses the fact-fi nder’s role in considering the testimony 9 of the witnesses. 10 {21} The third element of the jury instructi on on battery required that the jury find 11 beyond a reasonable doubt that Defendant di d not act in self-defense. Defendant 12 asserted that he was acting in self-defen se when he pepper-sprayed Victim because 13 Victim was threatening him with a pipe. Defendant’s self-defense argument was 14 considered by the jury by virtue of this instruction. The district court noted that 15 Defendant’s self-defense argument was considered by the jury in the battery 16 instruction. Defense counsel did not object or otherwise comment on the court’s 1712 point. We conclude that there was sufficient evidence to support Defendant’s 1 conviction for battery. 2 Issue 4: Jury Instruction on Citizen’s Arrest 3 {22} Defendant contends that even though hedid not offer a jury instruction on 4 citizen’s arrest, it was the district court’s responsibility to ensure that the jury was 5 properly instructed on the essential elements of the crime. Defendant argued that he 6 had the right to detain Victims until police arrived, because he believed a crime had 7 been committed against him. Based on this belief, Defendant argues that the district 8 court, sua sponte , should have given an instruction on citizen’s arrest to the jury. 9 {23} This argument returns us to the jury instructions on false imprisonment, 10 covering both Victims, particularly the s econd element: that De fendant knew he had 11 no authority to restrain or confine Vic tims. The State had the burden of proving, 12 beyond a reasonable doubt, that Defendant did not know he had such authority. 13 Defendant’s argument to the jury would have been that he had the authority to detain 14 Victims until law enforcement arrived because he believed a crime had been 15 committed against him. The jury would thendecide which versi on to believe. Thus, 16 a citizen’s arrest instruction would have been cumulative of the false imprisonment 17 instruction. 1813 {24} “The [district] court need not . . . offer duplicate instructions if the instructions 1 given adequately apprise the jury of the controlling law.” State v. Bunce , 116 N.M. 2 284, 287, 861 P.2d 965, 968 (1993); see State v. Nozie , 2007-NMCA-131, ¶ 11, 142 3 N.M. 626, 168 P.3d 756. 4 Issue 5: Ineffective Assistance of Counsel 5 A. Defense Counsel’s Failure to Request a Citizen’s Arrest Jury Instruction 6 {25} Defendant argues that he was provided ineffective assistance of counsel when 7 his attorney failed to request a citizen’s arrest instruction, as that was clearly his 8 defense. Moreover, De fendant contends that if the jury had believed his claim, the 9 jury would have been instructed to find him not guilty. 10 {26} Defendant must show that counsel’s performance fell below that of a reasonably 11 competent attorney and that Defendant was prejudiced by the deficient performance. 12 State v. Nguyen , 2008-NMCA-073, ¶ 28, 144 N.M. 197, 185 P.3d 368. The burden 13 of proof is on Defendant to prove both prongs. Id . Counsel is presumed competent. 14 State v. Jacobs , 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. A remand for 15 an evidentiary hearing is appropriate only when the record on appeal establishes a 16 prima facie case of ineffec tive assistance of counsel. State v. Arrendondo , 2012- 17 NMSC-013, ¶ 38, 278 P.3d 517. “A prima facie case is madeout when: (1) it appears 1814 from the record that counsel acted unreasonably; (2) the appellatecourt cannot think 1 of a plausible, rational strategy or tacticto explain counsel’s conduct; and (3) the 2 actions of counsel are prejudicial.” State ex rel. Children, Youth & Families Dep’t v. 3 David F. , 1996-NMCA-018, ¶ 20, 121 N.M. 341, 911 P.2d 235. “Without such prima 4 facie evidence, the Court presumes that defense counsel’s performance fell within the 5 range of reasonable representation.” Arrendondo , 2012-NMSC-013, ¶ 38. 6 {27} This matter goes back to our discussion in Issue 4 and relating to the district 7 court’s failure, sua sponte , to instruct the jury on citizen ’s arrest. Without reiterating 8 the discussion, such an instruction w ould have been cumulative of the false 9 imprisonment instructions. Therefore, we cannot conclude that defense counsel acted 10 unreasonably. The failure to re quest a citizen’s arrest jury instruction did not rise to 11 the level of ineffective assistance of counsel. 12

B. Trial Attorney’s Failure to Adequately Prepare for Trial 1315 {28} Defendant also argues that hi s trial counsel failed to adequately prepare for trial 1 by failing to interview necessary witnesses before trial. Defendant also recognizes 2 that there is nothing in the record to substantiate his claim. 3 {29} “When an ineffective assistance claim is first raised on direct appeal, we 4 evaluate the facts that are part of the record. If facts n ecessary to a full determination 5 are not part of the record, an ineffec tive assistance claim is more properly brought 6 through a habeas corpus petition[.]” State v. Roybal , 2002-NMSC-027, ¶ 19, 132 7 N.M. 657, 54 P.3d 61; see also Arrendondo , 2012-NMSC-013, ¶ 38 (“The record is 8 frequently insufficient to establish whether an action taken by defense counsel was 9 reasonable or if it caused prejudice. Thus , instead of remanding the matter to the 10 [district] court, [the Supreme Court] pref ers that these claims be brought under habeas 11 corpus proceedings so that the defendant may actually develop the record with respect 12 to defense counsel’s actions.” (citation omitted)). 13 {30} In the case before us, it would be more appropriate for Defendant to raise his 14 claim of ineffective assistance of counsel fo r failure to interview particular witnesses 15 prior to trial through a writ of habeas corpus. 16

CONCLUSION 1716 {31} For the foregoing reasons, we affirm Defendant’s convictions. 1 IT IS SO ORDERED. 2

___________________________ 3 M. MONICA ZAMORA, Judge 4

________________________________ 5 MICHAEL D. BUSTAMANTE, Judge 6

________________________________ 7 JONATHAN B. SUTIN, Judge 8