This memorandum opinion was not selected for pub lication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 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. 35,945 4 DANIEL FUENTES, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 7 James M. Hudson, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Kathleen T. Baldridge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 GARCIA, Judge. 17 {1} Defendant Daniel Fuentes appeals from his jury trial convictions for trafficking 18 by distribution and conspiracy to commit trafficking. [DS 2; RP 133, 139] This Court 192 issued a notice proposing to affirm. De fendant filed a memorandum in opposition, 1 which we have duly considered. Remaining unpersuaded, we affirm. 2 {2} Defendant raises two issues on appeal: (1) whether the evidence was sufficient 3 to support Defendant’s convictions, and (2 ) whether Defendant received ineffective 4 assistance of counsel when trial counsel s tipulated to the admission of the results of 5 the controlled substance testing. [DS 4] 6 {3} In his memorandum in opposition, Defendant continues to argue his convictions 7 were not supported by sufficient evidence b ecause the State failed to present any 8 direct evidence Defendant knowingly distributed drugs or conspired to do so. [MIO 9 4-5] As we pointed out in our notice of proposed disposition, circumstantial evidence 10 is substantial evidence. See State v. Montoya , 2015-NMSC-010, ¶ 52, 345 P.3d 1056. 11 [CN 4] “A party responding to a summary calendar notice must come forward and 12 specifically point out errors of law and f act[,]” and the repetition of earlier arguments 13 does not fulfill this requirement. See State v. Mondragon , 1988-NMCA-027, ¶ 10, 107 14 N.M. 421, 759 P.2d 1003, superseded by statute as stated in State v. Harris , 2013- 15 NMCA-031, 927 P.3d 374. Because Defendant ha s not pointed out any errors in the 16 notice of proposed disposition, we hold hi s convictions were supported by sufficient 17 evidence. 18 {4} Defendant next continues toargue he received ineff ective assistance of counsel 193 because trial counsel stipulated to admission of the drug test results, rather than 1 requiring the State to admit the results through the analyst who conducted the testing. 2 [MIO 7–8] Defendant admits trial counsel’sstipulation to the admission of evidence 3 was a strategic decision, but the decision removed the determination of the identity of 4 the substance from the jury’s considerati on. [MIO 8] Thus, Defendant argues, the 5 stipulation undermined the outcome of his trial. [MIO 9] 6 {5} As we noted in our proposed disposition, “[o]n appeal, we will not second guess 7 the trial strategy and tactic s of the defense counsel.” Lytle v. Jordan , 2001-NMSC8 016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted). 9 Aside from his assertion trial counsel’s strategy was unreasonable, [MIO 8] Defendant 10 fails to demonstrate how the stipulatio n to admission of evidence fell below an 11 objective standard of reasonableness or how the outcome of his trial would have been 12 different had the evidence been admitted through the analyst who tested the drugs. See 13 State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (setting forth the 14 requirements to establish a prima facie cas e of ineffective assistance of counsel). 15 Moreover, our Supreme Court has expressed a preference th at ineffective assistance 16 of counsel claims be adjudicated in habeas corpus proceedings, rather than on direct 17 appeal. Duncan v. Kerby , 1993-NMSC-011, ¶ 4, 115 N.M. 344, 851 P.2d 466. We 18 therefore hold Defendant has not demonstrated he receive d ineffective assistance of 194 counsel, based on the record before us. 1 {6} Accordingly, based on the reasons explai ned above and in this Court’s notice 2 of proposed disposition, we affirm. 3 {7} IT IS SO ORDERED. 4

__________________ ______________ 5 TIMOTHY L. GARCIA, Judge 6 WE CONCUR: 7

_______________________________ 8 MICHAEL E. VIGIL, Judge 9

_______________________________ 10 JULIE J. VARGAS, Judge 11