IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 28,955 4 MICHAEL BERRY, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 Frank K Wilson, District Judge 8 Gary K. King, Attorney General 9 Santa Fe NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 Nina Lalevic, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 CASTILLO, Judge. 17 Defendant appeals his convictions for criminal damage to property and battery. 18 We issued a notice of proposed summary di sposition, proposing to affirm. Defendant 192 has filed memorandum in opposition, which we have duly considered. Because we 1 remain unpersuaded, we uphol d Defendant’s convictions. 2 First, Defendant challenges the sufficiencyof the evidence to establish that he 3 was sane at the time he committed the offenses. [MIO 3-7] When examining a 4 challenge to the sufficiency of the evidence, this Court mu st view the evidence in the 5 light most favorable to the State, resolving all conflicts and indulging all reasonable 6 inferences to uphold the verdict. State v. Sanders , 117 N.M. 452, 456, 872 P.2d 870, 7 874 (1994). “This [C]ourt does not weigh the evidence and may not substitute its 8 judgment for that of the fact finder so l ong as there is sufficient evidence to support 9 the verdict. The fact finder may reject defendant’s version of the incident.” State v. 10 Sutphin , 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (citation omitted). 11 The State appears to have relied to some extent on the presumption of sanity. 12 [DS 5] This is a permissible approach. “Under our law the defendant is presumed to 13 have been sane at the time of the alle ged crimes, which casts upon him the necessity 14 of going forward with the evidence tending to show that he was insane. This 15 presumption of sanity continues to operate through the trial.” State v. Hartley , 90 16 N.M. 488, 489-90, 565 P.2d 658, 659-60 (1977) (citations omitted). Moreover, “the 17 presumption of sanity does not disappear and is not extinguished by evidence tending 18 to show insanity.” State v. Wilson , 85 N.M. 552, 555, 514 P.2d 603, 606 (1973). 193 Accordingly, the State may elect to rely on the presumption of sanity, even if the 1 defense has introduced evidence tending to show insanity. See id. (observing that the 2 State is not required to affirmatively provesanity; rather, it may elect to rely on the 3 presumption of sanity); State v. Moore , 42 N.M. 135, 155, 76 P.2d 19, 31 (1938) 4 (“When . . . evidence is received which tends to show that the accused was insane at 5 the time of the alleged offense, then . . . anissue is raised as to the mental condition 6 of the accused, and it becomes the duty of the juryto determine such issue from the 7 evidence independent of the presumption of sanity. If the jury, however, disbelieves 8 the evidence, then the presumpti on stands.” (emphasis original)). 9 In addition to relying on the presumpti on of sanity, the State also appears to 10 have presented indirect evidence of Defendant ’s sanity at trial. As we previously 11 observed, a number of eyewitnesses testifie d that Defendant pursued his girlfriend to 12 the home of a neighbor, where he instigated a fist fight. [DS 2] The witnesses then 13 saw Defendant attack a vehicl e and the windows of a trailer with a tire rim, and assault 14 a truck with his fists, feet, and a gas grill. [DS 3] The State also elicited evidence that 15 Defendant was angry and intoxi cated at the time. [DS 5] In the course of cross16 examination, two expert witnesses app ear to have acknowle dged that Defendant’s 17 conduct could have been the product of hi s anger and intoxication, rather than 18 insanity. [RP 94-96, 104, 106] Finally, we gather that the State presented evidence 194 of a course of conduct surrounding the viol ent episode, including retrieving and then 1 hiding destructive tools and/or weapons and subsequently attempting to evade the 2 police, which suggested cognition and contro l. [RP 96-97, 103] We conclude that 3 the foregoing evidence, together with the presumption of sanity, provides adequate 4 support for the jury’s ultimate determinati on that Defendant was sane at the time he 5 committed the offenses. 6 Defendant urges the Court to reverse, based on the testimony of the two expert 7 witnesses who opined that Defendant was not sane at the time of the underlying 8 incidents. [DS 4-5; MIO 2-4, 6-7] However, as we previously observed, the jury was 9 at liberty to reject their opinions and arrive at their own conclusions about 10 Defendant’s sanity. See State v. Noble , 90 N.M. 360, 364, 563 P.2d 1153, 1157 11 (1977) (“[T]he rule in New Mexico is th at expert testimony on the issue of insanity 12 is not binding of the factfinder and that the jury may believe or disbelieve expert 13 testimony as it chooses.”); Moore , 42 N.M. at 160, 76 P.2d at 34 (“It is for the jury to 14 reach a conclusion as to the sanity or insanity of the accused. The province of the 15 experts is to aid the jury in reaching a conc lusion. Their opinions are not to be taken 16 as conclusive. The judgments of experts or the inferences of skilled witnesses, even 17 when unanimous and uncontroverted, are notnecessarily conclusive on the jury, but 18 may be disregarded by it.”); and see, e.g. , State v. Dorsey , 93 N.M. 607, 610, 603 P.2d 195 717, 720 (1979) (upholding a jury’s rejection of an insanity defense despite the fact 1 that the defense was supported by the testimony of two psychologists and one 2 psychiatrist); State v. Gardner, 85 N.M. 104, 107-08, 509 P.2d 871, 874-75 (1973) 3 (upholding the jury’s rejection of an insanity defense, despite the testimony of two 4 experts to the effect that the defendant wa s insane and despite the State’s failure to 5 present conflicting evidence in rebuttal, where aspects of the experts’ testimony were 6 conflicting and unclear); State v. Victorian , 84 N.M. 491, 496, 505 P.2d 436, 441 7 (1973) (observing that neither the court nor the jury is required to accept the opinions 8 of psychiatrists or psychologists as toa defendant’s probable mental condition or 9 capacity); Mireles , 2004-NMCA-100, ¶ 35 (“It [is] th e fact-finder’s prerogative . . . 10 to reject the testimony of both experts and determine that Defendant was neither 11 legally insane nor mentally ill.”). In li ght of these well-established principles, we 12 decline Defendant’s invitation to re-weigh the testimony and reject his challenge to 13 the sufficiency of the evidence. 14 By his second issue, Defendant seeks to challenge the propriety of the State’s 15 reliance on the presumption of sanity, contending that this approach violates the 16 presumption of innocence and effectively permits the State to evade its burden of 17 proving guilt beyond a reasonable doubt. [MIO 8-9] However, as we previously 18 noted, Defendant’s argument runs afoul of controlling precedent. See State v. Lujan , 196 87 N.M. 400, 403, 534 P.2d 1112, 1115 (1975) (concluding that the recognition of the 1 presumption of sanity does not impermissibly shift the burden of proof to the defense 2 or otherwise violate due process). As illustrated by the preceding discussion, the 3 presumption of sanity is a longstanding fixture of our jurisprudence, which has been 4 consistently recognized and applied by the New Mexico Supreme Court. Because we 5 are not at liberty to revisit the matter, see Alexander v. Delgado , 84 N.M. 717, 718, 6 507 P.2d 778, 779 (1973) (holding that the Court of Appeals is bound by Supreme 7 Court precedent), overruled on other grounds by State v. Reynolds , 98 N.M. 527, 650 8 P.2d 811 (1982), we reject Defendant’s second argument. 9 Third and finally, Defendant claims ineffective assistance of counsel. [MIO 9- 10 12] “To prevail on a claim of ineffective assistance of counsel, a defendant must show 11 that counsel’s performance fell below that of a reasonably competent attorney, and 12 that the defendant was prejudicedby the deficient performance.” State v. Stone , 2008- 13 NMCA-062, ¶ 27, 144 N.M. 78, 183 P.3d 963. “The burden of proof is on the 14 defendant to prove both prongs.” Id. 15 Defendant bases his claim of ineffective assistance on his attorney’s failure to 16 introduce records of his history of psychiatri c care into evidence. [MIO 9] However, 17 we have no way to determine whether the introduction of the hospital records would 18 have benefitted the defense. Because counsel’s failure to introduce the records may 197 have been strategic, and because the prejudi cial effect of that election is entirely 1 speculative, Defendant has not made out a prima facie cas e of ineffective assistance. 2 See generally State v. Jacobs , 2000-NMSC-026, ¶ 49, 129 N.M. 448, 10 P.3d 127 (“A 3 prima facie case for ineffective assistance of counsel is not made if there is a plausible, 4 rational strategy or tactic to explain the counsel’s conduct.”); Duncan v. Kerby , 115 5 N.M. 344, 348-49, 851 P.2d 466, 470-71 (1993) (holding that prejudice must be 6 shown before a defendant is entitled to relief based on ineffective assistance of 7 counsel). 8 Despite his failure to make a prima f acie showing of ineffective assistance of 9 counsel, Defendant urges the c ourt to remand for an evidentiary hearing. [MIO 11-12] 10 We decline to do so. See generally State v. Herrera , 2001-NMCA-073, ¶ 35, 131 11 N.M. 22, 33 P.3d 22 (“A remand for an evidentiary hearing is appropriate only when 12 the record on appeal establishes a prima facie case of ineffective assistance of 13 counsel.”). To the extent that Defendant may wish to pursue the matter further, we 14 suggest that habeas corpus proceedings would be a more appropriate avenue. See 15 generally State v. Martinez , 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 16 (“This Court has expressed its preference for habeas corpus proceedings over remand 17 when the record on appeal does not establish a prima facie case of ineffective 18 assistance of counsel.”). 198 For the reasons stated, we affirm. 1 IT IS SO ORDERED. 2

________________________________ 3 CELIA FOY CASTILLO, Judge 4 WE CONCUR: 5

________________________________ 6 LINDA M. VANZI, Judge 7

________________________________ 8 TIMOTHY L. GARCIA, Judge 9