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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. 30,826 4 ROBERT MONTENEGRO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Lisa C. Schultz, District Judge 8
Gary K. King, Attorney General 9 Santa Fe, NM 10 M. Victoria Wilson, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Jacqueline L. Cooper, Chief Public Defender 14 Tania Shahani, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17

MEMORANDUM OPINION 18 KENNEDY, Judge. 192 Robert Montenegro (Defendant) appeal s from his conviction for six offenses 1 arising from his participation in a carjacking. Defendant makes three arguments on 2 appeal. First, Defendant c ontends his two convictions fo r aggravated battery violate 3 the constitutional protections against double jeopardy. Second, Defendant contends 4 the trial court erred in denyi ng his motions for directed verdict because the evidence 5 was insufficient to support his conviction. Third, Defendant claims he received 6 ineffective assistance of counsel. We rej ect Defendant’s arguments and affirm his 7 conviction. 8 I. BACKGROUND 9 Early in the morning on Sunday, July19, 2009, Aaron Olivas was standing 10 outside of his vehicle, a Ford Bronco, on Castenada Road in the desert near Hatch, 11 New Mexico. He was locki ng the wheels of his vehicle in preparation for engaging 12 the four-wheel drive to drive up a steep h ill. He was accompanie d by his wife, Delilah 13 Rios, and her friend, Kassaundra Trujillo, both of whom were standing outside the 14 vehicle on the passenger side. A grey Cad illac pulled up next to the Bronco. Juan 15 Carlos Contreras was driving the Cadillac. Defendant was riding in the passenger seat 16 and Saul Perez, Justin Garcia, and Isaias Porras were riding in the back seat. When 17 they saw the Bronco stopped alongside the road , Defendant told Contreras to stop the 18 Cadillac and said, “Let’s get this guy.” 193 Contreras testified that he exited the Cadillac and hit Olivas after someone told 1 him to do so. Porras and Defendant also exited the Cadillac. Defendant opened the 2 front door of the Bronco and sat in the driver’s seat while Porras hit and kicked 3 Olivas. Rios and Trujillo ran away from th e vehicles. Contreras got back in the 4 Cadillac and drove it closer to the Bronco. He yelled, “Let’s go.” Porras then took 5 a gun from his pants and shot Olivas in the head. Olivas fell to the ground and Porras 6 ran back to the Cadillac and jumped in th e passenger seat. Defendant backed the 7 Bronco over Olivas’s legs, hit the Cadillac’s fender, then drove forward over Olivas’s 8 torso. Contreras drove the Cadillac away from the scene, and Defendant followed. 9 Rios and Trujillo saw both vehicles drive aw ay and called 911. They returned to the 10 road and found Olivas lying on the ground. Th e parties stipulated at trial that Olivas 11 sustained injuries constituting great bodily harm. 12 Contreras stopped the Cadillac after a little while and let Perez out. The Bronco 13 passed the Cadillac while it was stopped. Af ter approximately half a mile, Defendant 14 stopped the Bronco, and Contreras pulled up next to the Bronco. Porras exited the 15 Cadillac and entered the passenger side of th e Bronco. Contrera s drove off in the 16 Cadillac, and Defendant followed in the Bronco. 17 Doña Ana County Sheriff’s Deputy Lawrence Louick responded to the initial 18 call from dispatch. He pursued the Bronc o for several miles at speeds exceeding 19 eighty miles per hour. After requesting b ackup, Deputy Louick was joined by Border 204 Patrol Agent Robert Turck. Agent Turc k helped stop the Bronco and saw two people 1 exit the Bronco. One person ran away. Th e other, Porras, surrendered by lying on the 2 ground next to the Bronco. The officers arre sted Porras, but did not pursue the person 3 who fled for officer safety reasons. Th e Bronco had blood stains outside and inside 4 the driver’s door and on the driver’s sideupholstery. Based on information received 5 from the Truth or Consequences Police Department, Defendant was identified as a 6 possible suspect. 7 Border Patrol agents with expertise intracking, assisted by members of the 8 Doña Ana County Sheriff’s Department, follo wed a trail left by the suspect fleeing the 9 Bronco. They lost the trail on rocky terrain on a hilltop from which they were able to 10 observe three residences, including the hous e of Defendant’s aunt, Carmen Aguilera. 11 Aguilera testified that Defendant appearedunexpectedly at her house, arriving on foot, 12 at approximately 3:00 a.m. on July 19. She was sitting outside with her boyfriend at 13 the time. 14 Defendant was arrested at Aguilera’s home later in the morning after officers 15 knocked on the door for approximately one hour without an answer. Deputy Louick 16 testified that Defendant appeared “very cl ean” and “like he’d maybe taken a shower.” 17 He had some red scrapes and scratches on his shins thatwere “no longer bleeding” 18 and “had begun to scab over.” The deputy te stified that the inju ries appeared “very 19 recent.” A search of Aguilera’s home revealed a washer and dryer. The officers 205 located a pair of white sneaker s close to the washer and dryer that were wet, clean, and 1 unlaced. They also found shorts and a blackt-shirt in the washer, sitting in murky 2 water. There was a brown leaf stuck to one of the items of clothing. Aguilera testified 3 that she was the only one who did laundry at her house and had last done laundry on 4 the Wednesday before the carjacking. 5 The Cadillac involved in the carjacking was later found and was identified as 6 belonging to Contreras and/or Porras. A ngela Contreras, JuanContreras’s wife, 7 testified that Defendant and Porras visited her husband attheir home on the evening 8 of July 18. Defendant and Porras left for a short time, then returned and left the 9 Contreras’s house with Juan Contreras later in the evening. 10 Contreras testified against Defendant at trial. After describing the carjacking, 11 Contreras testified about his plea agreemen t. He pled guilty to armed robbery, 12 conspiracy to commit armed robbery, and aggravated battery, in exchange for 13 dismissal of two counts and the firearm e nhancements. When questioned about his 14 understanding of the plea agreement, Contreras stated he was hoping for “the 15 minimum sentence.” On cross-examination, Contreras said he was “hopeful to get 16 probation” and said he told the defense i nvestigator he was going to get probation. 17 At the close of the State’s case, Defendant moved for a directed verdict on all 18 six charges, arguing the State failed to offer sufficient evidence to support his 19 conviction. The trial court denied the mo tion. Defendant rene wed his motion at the 206 close of all the evidence, and the court de nied the renewed motion. Defendant was 1 convicted on all counts: (1) armed robbery(firearm enhancement); (2) conspiracy to 2 commit armed robbery; (3) aggravated battery with a deadly weapon (firearm 3 enhancement); (4) aggravated battery w ith a deadly weapon; (5) tampering with 4 evidence; and (6) resisting, evading, or obstructing an officer. He filed a timely 5 appeal, challenging his conviction on the basi s of double jeopardy, sufficiency of the 6 evidence, and ineffective assistance of counsel. 7 II. DISCUSSION 8 A. Double Jeopardy 9 Defendant contends his tw o convictions for aggravated battery with a deadly 10 weapon violate the double jeopardy clauses of the United States and New Mexico 11 Constitutions. U.S. Const. amend. V; N.M. Const. art. II, § 15. Double jeopardy 12 affords a criminal defendant three layers of protection. It protects against (1) “a 13 second prosecution for the same offense after acquittal”; (2) “a second prosecution for 14 the same offense after conviction”; and (3) “multiple punishments for the same 15 offense.” Swafford v. State , 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) (internal 16 quotation marks omitted) (quoting N.C. v. Pearce , 395 U.S. 711, 717 (1969)). The 17 third level of protection has been divi ded into two categories: (1) “‘unit of 18 prosecution’ cases . . . in which a defendanthas been charged with multiple violations 19 of a single statute based on a single courseof conduct”; and (2 ) “‘double description’ 207 cases . . . in which a defendant is charged with violations of multiple statutes for the 1 same conduct[.]” (citation omitted). State v. DeGraff , 2006-NMSC-011, ¶ 25, 139 2 N.M. 211, 131 P.3d 61. 3 Defendant raises a unit of prosecution ch allenge. He claims that his conduct 4 during the carjacking can support only one count of aggravated battery under NMSA 5 1978, Section 30-3-5 (1969). In analyzing a unit-of-prosecution claim, we undertake 6 a two-step analysis. We first review the statutory language. “If the statutory language 7 spells out the unit of prosecution, thenwe follow the language, and the unit-of8 prosecution inquiry is complete.” State v. Bernal , 2006-NMSC-050, ¶ 14, 140 N.M. 9 644, 146 P.3d 289. “If the language is not cl ear, then we move to the second step, in 10 which we determine whether a defendant’s acts are separated by sufficient ‘indicia of 11 distinctness’ to justify multiple punishments under the same statute.” Id. (quoting 12 State v. Barr , 1999-NMCA-081, ¶ 15, 127 N.M. 504, 984 P.2d 185). “If the acts are 13 not sufficiently distinct, then the rule of lenity mandates an interpretation that the 14 [L]egislature did not intend multiple punishments, and a defendant cannot be punished 15 for multiple crimes.” Id. 16 Section 30-3-5(A) defines aggravated battery as “the unlawful touching or 17 application of force to the person of another with intent to injure that person or 18 another.” The State contends that this language spells out the unit of prosecution as 19 “each unlawful touching or application of force.” We disagree. In Herron v. State , 208 the New Mexico Supreme C ourt analyzed the language of New Mexico’s criminal 1 sexual penetration statute and concluded the statute did not “punish separately each 2 penetration occurring during a continuous attack absent proof that each act of 3 penetration is in some sense distinct from the others.” 111 N.M. 357, 361, 805 P.2d 4 624, 628 (1991). In State v. Mares , we considered a unit-of-prosecution argument 5 involving multiple batteries and “adopt[ed] the same approach to allegations of 6 multiple batteries” as the Herron court adopted in its analysis of multiple penetrations. 7 Mares , 112 N.M. 193, 199, 812 P.2d 1341, 1347 (Ct. App. 1991). We resolved the 8 defendant’s double jeopardy claim in Mares by considering whether his acts were 9 sufficiently distinct to justify multiple punishments. See id. In subsequent cases, we 10 have continued to analyze the indicia of distinctness factors in considering double 11 jeopardy challenges to battery convictions. See, e.g. , State v. Garcia , 2009-NMCA12 107, ¶ 10, 147 N.M. 150, 217 P.3d 1048 (reviewing the indicia of distinctness factors 13 where the defendant challenged his convic tions of petty misdemeanor battery and 14 aggravated battery); State v. Stewart , 2005-NMCA-126, ¶ 14, 138 N.M. 500, 122 P.3d 15 1269 (reviewing the indicia of distinctness f actors where neither party addressed the 16 issue of whether the unit of prosecution is clearly defined in New Mexico’s statute 17 defining battery against a household member). 18 We thus proceed to the second part of our unit-of-prosecution analysis and 19 consider whether Defendant’s acts were sepa rated by sufficient indicia of distinctness 209 to justify multiple punishments. See Bernal , 2006-NMSC-050, ¶ 14. In State v. 1 Dominguez , the New Mexico Supreme Court listed the following indicia of 2 distinctness factors: 3 [T]he temporal proximity of the acts, the spatial proximity of the acts, 4 the similarity of the acts, the location of the victim at the time of the acts, 5 the identity and number of victims for each act, the identity and number 6 of perpetrators for each act, the exis tence of any intervening events, the 7 sequence of the acts, and the defendant’s mental state or objective during 8 each act. 9 2005-NMSC-001, ¶ 23, 137 N.M. 1, 106 P.3d 563. 10 The jury was instructed that the two charges of aggravated battery against 11 Defendant were based on two distinct act s. Count Three involved the touching or 12 application of force to the victim “by shoo ting him or striking [him] with a firearm.” 13 Count Four involved the touching or applicati on of force to the victim using a vehicle 14 as a deadly weapon. The jury was also instructed it could find Defendant guilty even 15 if he did not do the act constituting the crime if, inter alia , he “helped, encouraged[,] 16 or caused the crime to be committed.” De fendant contends th e two batteries were 17 unitary, rather than distinct, because they “were continuous and sequential, occurring 18 over a short period of time, and with one me ntal state[.]” He relies principally on 19 Garcia and Mares

. 20 In Garcia , we held the defendant could not be convicted of petty misdemeanor 21 battery and aggravated battery where th e record indicated the two charged acts 2210 “occurred close in time and sequence, in one location, with one victim.” 2009- 1 NMCA-107, ¶ 13. We explained that “[t]heevidence indicates [the d]efendant was 2 continually and sequentially progressing from lesser force to more forceful harm over 3 a very short period of time, all resulti ng without any apparent change in [the 4 d]efendant’s state of mind.” Id. ¶ 16. In Mares , we held “the evidence at trial would 5 not sustain a verdict of multiple batteries ” where the defendant choked and hit the 6 victim “over one violent rampage with little time between offensive contacts.” 112 7 N.M. at 199-200, 812 P.2d at 1347- 48. We noted the record did not provide details 8 regarding the extent of intervention and any changed motiv e during the course of the 9 attack. We explained that “[t]he only factor weighing in favor of separate offenses 10 [was] the various methods by which [the ] defendant battere d the victim.” Id. at 200, 11 812 P.3d at 1348. 12 Both Garcia and Maresinvolved a single perpetrator and a single weapon. 13 Here, the two battery charges were base d on acts committed by tw o different people, 14 Defendant and Porras, with two different weapons, the Br onco and the firearm. While 15 the acts occurred in relative temporal and geographic proximity and involved only one 16 victim, Defendant and Porras had different motives. Porra s battered Olivas with the 17 firearm during the initial struggle over control of the Bronco. Defendant battered 18 Olivas with the Bronco while leaving th e scene. This is not a single attack 19 progressing in force like we considered in Garcia ; nor is it a single violent rampage 2011 like we considered in Mares . Instead, as the jury f ound, Defendant committed two 1 distinct acts of aggravated battery. We havereached similar results in cases in which 2 charges are based on multiple perp etrators and multiple weapons. See, e.g. , Bernal , 3 2006-NMSC-050, ¶¶ 20-22 (holding the acts at issue were distinct where there were 4 two victims against whom “theassailants used a different type of force” in different 5 locations); Dominguez , 2005-NMSC-001, ¶ 24 (holding the acts at issue were distinct 6 where there were multiple victims shot withdifferent guns in different locations and 7 the evidence supported “a reasonable inference that different principals shot different 8 victims”). Because the two ch arges of aggravated battery were based on distinct acts, 9 we reject Defendant’s double jeopardy challenge. 10 B. Sufficiency of the Evidence 11 Defendant claims the evidence presented at trial was insufficient to support his 12 conviction on any of the six counts. “[O]ur review for sufficiency of the evidence is 13 deferential to the jury’s findings.” State v. Garcia , 2011-NMSC-003, ¶ 5, 149 N.M. 14 185, 246 P.3d 1057. We review direct and circumstantial evidence “in the light most 15 favorable to the guilty verdict, indulging all reasonable inferences and resolving all 16 conflicts in the evidence in favor of the verdict.” Id. (internal quotation marks and 17 citation omitted). “So long as a rational jurycould have found beyond a reasonable 18 doubt the essential facts required for a conviction, we will not upset a jury’s 19 conclusions.” Id. (internal quotation marks and citation omitted). 2012 In challenging the sufficiency of the ev idence, Defendant points out that there 1 was little direct evidence. The circumstan tial evidence, in particular, the testimony 2 of Contreras, was not credible. Contreras entered into a plea agreement with the State 3 and, according to Defendant, was biased and had a motive to lie. Contreras’s 4 testimony at trial differed from the inform ation he provided to law enforcement 5 immediately following the carjacking when he denied any involvement. Defendant 6 relies principally on State v. Armijo , but that case is inapposite. 35 N.M. 533, 2 P.2d 7 1075 (1931). 8 In Armijo , the New Mexico Supreme Court granted the defendant’s motion for 9 rehearing, concluding that the description of events provided by the accessory witness 10 at trial was “inherently improbable.” 35 N.M. at 542, 2 P.2d at 1080. The Court 11 explained its holding did not change the ge neral rule that “an appellate court is 12 powerless to interfere with a verdict of guilty” even wher e the jury relied on testimony 13 of a witness accomplice whose testimony was impeached. Id. at 541, 2 P.2d at 1079. 14 The Court noted “[i]t is not unusual for trueconfessions to follow false denials” and 15 “for a participant in a crime to abandon an early determination to protect his 16 associates.” Id. at 541-42, 2 P.2d at 1079-80. The Armijo Court granted the 17 defendant’s motion after concluding “the jury . . . failed to perform its proper 18 function” because “[t]he verdict rest[ed] upon evidence whic h fail[ed] to meet any test 19 of truth.” Id. at 543-44, 2 P.2d at 1080. 2013 Here, Contreras’s testimony was corrobor ated by other witnesses and is not 1 inherently improbable. Olivas, Rios, and Trujillo, testified to a similar sequence of 2 events as Contreras. While they could not identify Defendant, or anyone else involved 3 in the carjacking because it wa s dark, they testified there were multiple individuals in 4 the Cadillac, three of whom took an active rolein the carjacking. Border Patrol Agent 5 Turck observed two people exit the Bronco. Porras surrendered next to the Bronco, 6 and Defendant was located a few hours later at Aguilera’s hous e, which was within 7 walking distance of the Bronco. Aguilera testified that Defendant arrived 8 unexpectedly at her house, on foot, at approximately 3:00 a.m. on July 19. Defendant 9 was found at Aguilera’s house with scrapes and scratches on his legs, recently 10 showered, and with dirty clothes in the laundry. 11 Unlike the testimony of the accomplice in Armijo , Contreras’s testimony 12 describes a probable sequence of events. The jury heard testimony about Contreras’s 13 plea agreement, and defense counsel questioned Contreras about his earlier 14 inconsistent statements and his possible bias and motive to lie. As we have explained 15 previously, “[t]he jury alone is the judgeof the credibility of the witnesses and 16 determines the weight afforded to tes timony taking into account, among other things, 17 any biases or prejudices the witness may have.” State v. Stampley , 1999-NMSC-027, 18 ¶ 34, 127 N.M. 426, 982 P.2d 477. We will not discount Contreras’s testimony as a 19 matter of law. We will proceed to review each count in turn. 2014 1. Armed Robbery and Conspira cy to Commit Armed Robbery 1 Armed robbery is defined as “the thef t of anything of value from the person of 2 another or from the immediate control of another, by use or threatened use of force or 3 violence . . . while armed with a deadly weapon.” NMSA 1978, § 30-16-2 (1973). 4 Conspiracy to commit armed robbery is defined as “knowingly combining with 5 another for the purpose of committing” th e offense of armed robbery. NMSA 1978, 6 § 30-28-2(A) (1979). The jury was instructedthat the armed robbery count was based 7 on Defendant’s alleged act of taking and carrying away the Bronco from Olivas or 8 from his immediate control, intending to perm anently deprive him of the vehicle. The 9 jury was instructed that the conspiracy count was based on Defe ndant’s alleged act of 10 entering into an agreemen t with another person to commit armed robbery and 11 intending, along with the other person, to commit armed robbery. 12 Defendant contends there was insufficient evidence to establish he was involved 13 in the carjacking or was at the scene of th e crime. We disagree. Contreras’s wife 14 testified that her husband left their house on the evening of July 18 with Defendant 15 and Porras. Olivas, Rios, and Trujillo te stified that there were three individuals 16 actively involved in the carjacking. Contrera s testified that Defe ndant was one of the 17 three individuals involved in the carjacki ng. In addition, there was evidence from 18 which the jury could reasonably infer thatDefendant was involved in the carjacking 19 because he was driving the Bronco at the time it was stopped. Defe ndant points to the 2015 fact that his fingerprints were not found on the Bronco. That evidence is no more 1 probative than the testimony at trial revealing that fingerprints were lifted from the 2 Bronco, but were not sufficient quality to allow for fingerprint comparison. 3 Defendant also argues there was insuffi cient evidence that he possessed the 4 requisite mental state to be convicted of armed robbery or conspiracy to commit 5 armed robbery. Again, we disagree. While there was no direct evidence of 6 Defendant’s intent, there rarely is. See State v. Durant , 2000-NMCA-066, ¶ 15, 129 7 N.M. 345, 7 P.3d 495 (recognizing “[i]ntent can rarely be proved directly and often 8 is proved by circumstantial evidence”). Here, there was sufficient circumstantial 9 evidence from which the jury could find thatDefendant got into the Bronco at the 10 beginning of the carjacking and drove the Bronco away after Olivas was shot, 11 intending to permanently deprive him of the vehicle. As for the conspiracy charge, 12 the jury could reasonably infer from the ac tions of Defendant, Po rras, and Contreras 13 that Defendant entered into an agreement with Porras and/or Contreras to commit 14 armed robbery and intended to commit armed robbery. See State v. Johnson , 2004- 15 NMSC-029, ¶ 49, 136 N.M. 348, 98 P.3d 998 (explaining that the requisite agreement 16 to support a conspiracy conviction “may be in the form of a mutually implied 17 understanding and may be inferred from circumstantial evidence”). 18 2. Aggravated Battery 1916 Aggravated battery is defined as “the unlawful touching or application of force 1 to the person of another with intent to injure that person or another.” NMSA 1978, 2 § 30-3-5(A) (1969). Defendant was charged with one count of aggravated battery 3 based on Porras’s use of the firearm as a deadly weapon. He was charged with 4 another count of aggravated battery based on his use of the Ford Bronco as a deadly 5 weapon. The jury was instructed that it could find Defendant gu ilty if, though he did 6 not himself commit the acts constituting the crime, he “helped, encouraged[,] or 7 caused the crime to be committed.” 8 Defendant argues the State did not o ffer sufficient evidence to prove he 9 committed either count of aggravated battery because these counts were supported 10 only by the testimony of Contreras. As di scussed previously, it was for the jury to 11 determine the weight to afford to Contreras’s testimony, and wewill not second-guess 12 the jury’s determination on appeal. Mo rever, Contreras’s testimony was supported 13 by other evidence indicating that Defendant battered Olivas with the Bronco and 14 helped, encouraged, or caused Porras to batter Olivas with the firearm. 15 3. Tampering With Evidence 16 Tampering with evidence is defined, in pertinent part, as “destroying, changing, 17 hiding, placing or fabricating any physical evidence with intent to prevent the 18 apprehension, prosecution[,] or convic tion of any person.” NMSA 1978, § 30-22- 19 5(A) (2003). The jury was instructed th at this charge was based on Defendant’s 2017 alleged conduct of destroying, changing, hiding, or placing his clothes in the washer 1 at Aguilera’s house or hiding them to prevent his apprehension, prosecution, or 2 conviction. Defendant acknow ledges “[a]n overt act may have occurred” but contends 3 there was insufficient evidence to tie that act to him and thus insufficient evidence 4 from which to defer the necessaryintent. Again, we disagree. 5 The State presented evid ence from which the jury could find that Defendant 6 either washed his clothes or hid them in the washer at Aguilera’s house on the 7 morning of July 19. Officers searching Aguilera’s home found shorts and a black t8 shirt in the washer, sitting inmurky water. Aguilera testified that she was the only 9 one who did laundry at her house and had last done laundry on the Wednesday before 10 the carjacking. She also testified that she did not know anything about the clothes 11 found in the washer. 12 Defendant contends the clothes could have belonged to Aguilera’s boyfriend 13 or her brother, who had recen tly visited. Defendant also complains about the State’s 14 failure to prove that the clothing found inthe washer was his size. These were 15 questions for the jury to decide, and we w ill not upset the verdict merely because the 16 jury could have reached a different result. As for intent, we have previously noted that 17 it “is subjective and is almost always inferred from other facts in the case.” State v. 18 Silva , 2008-NMSC-051, ¶ 18, 144 N.M. 815, 192 P.3d 1192 (internal quotation marks 1918 and citation omitted). The jury could reas onably have inferred that Defendant placed 1 his clothes in the washer to prevent his apprehension, prosecution, or conviction. 2 4. Resisting, Evading, or Obstructing an Officer 3 Resisting, evading, or obstructing an offi cer is defined, in pertinent part, as 4 “intentionally fleeing, attempting to evade or evading an officer of this state when the 5 person committing the act . . . has knowledgethat the officer is attempting to 6 apprehend or arrest him[.]” NMSA 1978, § 30-22-1(B) (1981). The jury was 7 instructed that this count was based on Defendant’s conduct with respect to Deputy 8 Louick. Defendant contends there was insu fficient evidence to support his conviction 9 because there was insufficient evidence th at he was the individual who drove the 10 Bronco away from the scene, and who ran away from the Bronco after it was stopped. 11 Again, Defendant is not challenging the ad mission of any particular evidence, but is 12 challenging the weight the jury afforded the evidence. We resolve all conflicts in the 13 evidence in favor of the jury’s verdict, and thus hold the evidence was sufficient for 14 the jury to find that Defendant drove the Bronco and fled from th e scene in an effort 15 to evade apprehension or arrest. 16 5. Ineffective Assistance of Counsel 17 Defendant contends he received ineffective assistance of counsel for multiple 18 reasons. There is a two-foldtest for proving ineffective assistance of counsel. The 19 defendant must show (1) his counsel’s performance fell below that of a reasonably 2019 competent attorney, and (2) the defe ndant was prejudiced by the deficient 1 performance. See State v. Hester , 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. 2 The burden of proof is on the de fendant to proveboth prongs. See id. “When an 3 ineffective assistance claim is first raised on direct appeal, we ev aluate the facts that 4 are part of the record. If facts necessary to a full determination are not part of the 5 record, an ineffective a ssistance claim is more properly brought through a habeas 6 corpus petition[.]” State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 7 61. We may, however, remand a case for an evidentiary hearing if the defendant 8 makes a prima facie case of ineffective assistance. See id. 9 Defendant first argues his counsel wa s ineffective for failing to adequately 10 investigate the origin of the scrapes on hi s legs. We cannot determine from the record 11 the extent of the investigation, if any, that defense counsel conducted regarding the 12 origin of the scrapes. Defendant claims his attorney should have hired an expert to 13 testify regarding the scrapes, but we have no way of evaluating whether counsel 14 considered hiring an expert or determinedthat an expert would not be helpful. 15 Defendant has failed to demonstrate that hi s counsel’s actions were not attributable 16 to a rational trial strategy. “On appeal, we will not second guess the trial strategy and 17 tactics of the defense counsel.” Lytle v. Jordan , 2001-NMSC-016, ¶ 43, 130 N.M. 18 198, 22 P.3d 666 (internal quotati on marks and citation omitted). 1920 Defendant next argues his counsel was ineffective for failing to properly 1 question witnesses on cross-examination. Defendant claims his counsel did not 2 adequately question Contrera s about his bias and motive to lie, but defense counsel 3 did question Contreras in de tail about his plea agreement, and the earlier inconsistent 4 statements he made to police. Defendant claims his counsel should have questioned 5 Aguilera in more detail about her use of alcohol on the evening of the carjacking, 6 which may have affected her perception and recall of the events. Again, Defendant 7 has not shown, on this record, that his couns el’s actions were not part of a reasoned, 8 though ultimately unsuccessful, trial strategy. 9 Defendant argues his counsel was ineff ective because he stipulated to the 10 admission of irrelevant and prejudicial photographs showing blood-stained clothing 11 and body parts. Defense counsel objected to the admission of certain photographs on 12 the grounds of prejudice, but the court overru led his objection. To the extent counsel 13 stipulated to the admission of any exhibits without objection, De fendant has failed to 14 show he was prejudiced. 15 Defendant’s final argument is that his counsel was ineffective for agreeing to 16 multiple continuances without informing De fendant and for regularly failing to return 17 Defendant’s phone calls. The record does not reveal anything about the extent and 18 nature of the communications be tween Defendant and his counsel. 1921 The record before us does not support Defendant’s ineffective assistance of 1 counsel claim, and Defendant has not made a prima facie case sufficient to warrant an 2 evidentiary hearing. Our holding does not, of course, prevent De fendant from raising 3 this argument in a petition for habeas corpus. 4 III. CONCLUSION 5 Finding no merit in Defendant’s claims, we affirm his convictions. 6 IT IS SO ORDERED. 7

_______________________________ 8 RODERICK T. KENNEDY, Judge 9

WE CONCUR: 10

___________________________ 11 JAMES J. WECHSLER, Judge 12

___________________________ 13 CYNTHIA A. FRY, Judge 14