 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 31,331

10 MICHAEL EVANS,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 Gary L. Clingman, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender
18 Karl Erich Martell, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 WECHSLER, Judge.

23          Evans appeals his convictions for second-degree murder and tampering with
 1 evidence. In this Court’s notice of proposed summary disposition, we proposed to

 2 affirm. Evans has filed a memorandum in opposition and a motion to amend the

 3 docketing statement, which we have duly considered. As we are not persuaded by

 4 Evans’s arguments, we deny the motion and we affirm.

 5 Sufficiency of the Evidence as to Second-Degree Murder

 6        Evans contends that he should have been found guilty of voluntary

 7 manslaughter, rather than second-degree murder. [DS 10] In our notice of proposed

 8 summary disposition, we proposed to conclude that, pursuant to the appropriate

 9 standard of review, there was sufficient evidence to support a conviction for second-

10 degree murder. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915

11 P.2d 318 (stating that the question is whether the district court’s “decision is

12 supported by substantial evidence,” not whether it “could have reached a different

13 conclusion”); State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d

14 176 (stating that in evaluating the sufficiency of the evidence, we “view the evidence

15 in the light most favorable to the guilty verdict, indulging all reasonable inferences

16 and resolving all conflicts in the evidence in favor of the verdict”).

17        In his memorandum in opposition, Evans continues to assert that the evidence

18 demonstrated that the killing occurred after sufficient provocation by the victim, such

19 that he could only have been convicted of voluntary manslaughter. [MIO 14-15] As


                                              2
 1 Evans presents no new facts, authority, or analysis that would persuade this Court that

 2 its proposed resolution of this issue was erroneous, we find no error for the reasons

 3 stated in the notice.

 4 Fundamental Error In Closing Argument

 5        Evans contends that fundamental error occurred when the prosecutor stated that

 6 there has been a coarsening of society and that if society accepts behavior like

 7 Evans’s, then it has a problem. [DS 9, 10] In our notice of proposed summary

 8 disposition, we proposed to hold that the statement did not constitute fundamental

 9 error. Pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and State v.

10 Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), Evans continues to assert that this

11 statement constituted fundamental error. [MIO 15] We find no fundamental error, for

12 the reasons stated in the notice of proposed summary disposition.

13 Error in Sentencing Evans as an Adult

14        Evans contends that the district court erred in sentencing him as an adult after

15 an amenability hearing. [DS 10] The district court held a hearing pursuant to NMSA

16 1978, Section 32A-2-20 (2009), at which it reviewed a psychologist’s report and heard

17 arguments of counsel. [RP 90, 97] Based on the evidence presented at the hearing

18 and at trial, the district court found that Evans was amenable to treatment as a child,

19 but that there were no facilities available that were appropriate. [RP 97] In essence,


                                              3
 1 this conclusion was that Evans was not amenable to treatment in available

 2 facilities—the finding that the court was required to make pursuant to Section 32A-2-

 3 20(B). In reaching this conclusion, the court considered the factors required by

 4 Section 32A-2-20(C): that second-degree murder is a serious offense; that Evans acted

 5 in an aggressive, violent, and willful manner in committing the murder; that he used

 6 a high-powered rifle at close range to shoot the victim, who was on the ground at the

 7 time; that the crime resulted in the victim’s death; that Evans’ maturity, environment,

 8 and social situation were not more difficult than many others’; that Evans had a

 9 significant prior criminal history, including a firearm offense for which he was

10 evading arrest at the time of the murder; and that Evans had turned eighteen during

11 the course of the proceeding, such that the court believed he was too old for detention

12 in a juvenile facility and incarceration in a facility of the Department of Corrections

13 was necessary to protect the public. [RP 97-98]

14        Evans filed a motion for reconsideration, pointing out that defense counsel had

15 informed the court at the amenability hearing that there was a juvenile facility that

16 would take Evans. [RP 104-05] The district court denied the motion, and restated its

17 previous ruling, stating that it found that Evans was not amenable to treatment in

18 existing facilities. [RP 111]

19        In our notice of proposed summary disposition, we proposed to hold that the


                                              4
 1 district court did not abuse its discretion in reaching this conclusion. We stated that

 2 we did not understand the district court to have stated that there was no facility that

 3 would accept Evans, but rather that, in light of the other factors the district court was

 4 required to consider, there was no facility that could properly treat him. See Herrera

 5 v. Roman Catholic Church, 112 N.M. 717, 721, 819 P.2d 264, 268 (Ct. App. 1991)

 6 (“Unless clearly erroneous or deficient, findings of the trial court will be construed so

 7 as to uphold a judgment rather than to reverse it.”).

 8        In Evans’s memorandum in opposition, he asserts that the psychological report

 9 that the district court considered at the hearing stated that in the evaluator’s opinion,

10 Evans was amenable to treatment. [MIO 6] This may be so, but the district court was

11 not bound by the evaluator’s opinion in making its assessment. A finder of fact may

12 disregard expert opinions, even if those opinions are uncontradicted. See State v.

13 Alberico, 116 N.M. 156, 164, 861 P .2d 192, 200 (1993) (stating that “an expert’s

14 opinion is not conclusive of a fact in issue even though the opinion may be

15 uncontroverted”).

16        Evans also continues to argue that because he informed the district court that

17 there was a facility that would have accepted him, the district court necessarily abused

18 its discretion in determining that he could not be rehabilitated in available facilities.

19 [MIO 6-8] However, as we stated in our notice, we believe that the district court acted


                                               5
 1 within its discretion by evaluating the factors outlined in Section 32A-2-20(C) and

 2 determining that Evans was not amenable to treatment in the facility that was

 3 available.

 4 Pretrial Publicity

 5        Pursuant to Franklin and Boyer, Evans argues that pretrial publicity prejudiced

 6 his right to a fair trial. [DS 10, 12; MIO 15-16] He acknowledges, however, that he

 7 did not seek a change of venue in the district court. [DS 3] Because Evans did not

 8 preserve this issue, we hold that this claim of error does not warrant reversal on

 9 appeal. See Rule 12-216(A) NMRA (“To preserve a question for review it must

10 appear that a ruling or decision by the district court was fairly invoked[.]”).

11 Conflict of Interest

12        Pursuant to Franklin and Boyer, Evans contends that the prosecutor’s prior

13 representation of Evans’s mother in another case constituted a conflict of interest.

14 [DS 11, 13; MIO 17] Again, Evans acknowledges that he did not raise this issue in

15 the district court. [DS 3] Because Evans did not preserve this issue, we hold that this

16 claim of error does not warrant reversal on appeal. See Rule 12-216(A).

17 Police Procedure

18        Pursuant to Franklin and Boyer, Evans argues that the police procedure in this

19 case violated his right to a fair trial. [DS 11, 13; MIO 18] Because this issue was not


                                              6
 1 preserved, we hold that it does not warrant reversal.             See Rule 12-216(A).

 2 Furthermore, even if the issue had been preserved, Evans provides no authority to

 3 support this claim of error, and we therefore assume that there is none. In re Adoption

 4 of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).

 5 Ineffective Assistance of Counsel

 6        Pursuant to Franklin and Boyer, Evans argues that he received ineffective

 7 assistance of counsel. [DS 11, 13; MIO 12] “When an ineffective assistance claim

 8 is first raised on direct appeal, we evaluate the facts that are part of the record.” State

 9 v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. “If facts necessary to

10 a full determination are not part of the record, an ineffective assistance claim is more

11 properly brought through a habeas corpus petition, although an appellate court may

12 remand a case for an evidentiary hearing if the defendant makes a prima facie case of

13 ineffective assistance.”     Id.   Because there is a preference for habeas corpus

14 proceedings over remand, “[a] record on appeal that provides a basis for remanding

15 to the trial court for an evidentiary hearing on ineffective assistance of counsel is

16 rare.” State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776.

17        In order to establish a prima facie case of ineffective assistance of counsel,

18 Defendant must demonstrate that “(1) counsel’s performance was deficient in that it

19 fell below an objective standard of reasonableness; and (2) that Defendant suffered


                                                7
 1 prejudice in that there is a reasonable probability that, but for counsel’s unprofessional

 2 errors, the result of the proceeding would have been different.” State v. Aker,

 3 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (internal quotation marks and

 4 citation omitted). Counsel is presumed competent. State v. Jacobs, 2000-NMSC-

 5 026, ¶ 48, 129 N.M. 448, 10 P.3d 127. “On appeal, we will not second guess the trial

 6 strategy and tactics of the defense counsel.” Lytle v. Jordan, 2001-NMSC-016, ¶ 43,

 7 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted). Evans’s

 8 argument relies in part on facts that are not of record, and in part on claims of

 9 ineffectiveness that could come within the realm of legitimate trial tactics. [MIO 10-

10 11] Accordingly, we conclude that Evans has not established a prima facie case of

11 ineffective assistance of counsel on direct appeal. We reach no conclusion as to

12 whether Evans might succeed on such a claim in a collateral proceeding.

13 Motion to Amend the Docketing Statement

14        Evans seeks to amend the docketing statement to add a claim that there was

15 insufficient evidence to support his conviction for tampering with evidence. [MIO 19-

16 21] This Court will not grant such a motion when the claim to be raised is not viable.

17 See State v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (denying

18 a motion to amend the docketing statement based upon a determination that the

19 argument sought to be raised was not viable).


                                               8
 1        The facts and argument presented in Evans’s motion indicate that Evans

 2 believes that a reasonable jury could have concluded that he did not change clothes

 3 or place the gun in a neighbor’s back yard in order to hide the clothes and gun with

 4 the intent to disrupt the police investigation. [MIO 20] However, our highly

 5 deferential standard of review for claims of insufficiency of the evidence requires us

 6 to review this evidence in the light most favorable to the verdict, Cunningham, 2000-

 7 NMSC-009, ¶ 26, and therefore, this claim of error is not viable. This case is not like

 8 State v. Duran, 2006-NMSC-035, ¶ 13, 140 N.M. 94, 140 P.3d 515, where there was

 9 no evidence that physical evidence had been moved or hidden with an intent to disrupt

10 the police investigation, since the evidence that the State asserted must have existed

11 in Duran was never found. Here, Evans concedes that there was evidence presented

12 at trial that he changed his clothes and that the gun used during the shooting was

13 found in a neighbor’s back yard. [MIO 20] The witnesses’ observations and the

14 physical evidence that was located constitutes direct and circumstantial evidence of

15 an overt act of tampering. See id. ¶ 16. We deny the motion to amend.

16        Therefore, for the reasons stated in this opinion and in our notice of proposed

17 summary disposition, we affirm.

18        IT IS SO ORDERED.




                                              9
1                                      ________________________________
2                                      JAMES J. WECHSLER, Judge
3 WE CONCUR:



4 __________________________________
5 MICHAEL D. BUSTAMANTE, Judge



6 __________________________________
7 CYNTHIA A. FRY, Judge
8




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