 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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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. 30,448

10 RUSSELL WARWICK,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
13 Abigail Aragon, District Judge

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Mary Barket, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 SUTIN, Judge.

23          Defendant appeals from the district court’s judgment and sentence convicting

24 him for solicitation to commit first degree murder pursuant to a jury verdict and
 1 sentencing him to nine years incarceration and two years of parole. We issued a

 2 notice of proposed summary disposition, proposing to affirm.            Defendant has

 3 responded to our notice with a memorandum in opposition. We have considered

 4 Defendant’s response, and we are not persuaded. Therefore, we affirm.

 5        On appeal, Defendant challenges the sufficiency of the evidence to support his

 6 conviction for solicitation to commit first degree murder [MIO 10-12] and argues that

 7 he was denied effective assistance of counsel. [MIO 13-16]

 8 Sufficiency of the Evidence

 9        We engage a two-step analysis to evaluate a challenge to the sufficiency of the

10 evidence presented to support a conviction. First, we “view the evidence in the light

11 most favorable to the guilty verdict, indulging all reasonable inferences and resolving

12 all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-

13 NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.               Second, we “make a legal

14 determination of whether the evidence viewed in this manner could justify a finding

15 by any rational trier of fact that each element of the crime charged has been

16 established beyond a reasonable doubt.” State v. Apodaca, 118 N.M. 762, 766, 887

17 P.2d 756, 760 (1994) (internal quotation marks and citation omitted). “The reviewing

18 court does not weigh the evidence or substitute its judgment for that of the fact finder

19 as long as there is sufficient evidence to support the verdict.” State v. Mora, 1997-

20 NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogation on other grounds

21 recognized in Kersey v. Hatch, 2010-NMSC-020, ___ N.M. ___, 237 P.3d 683. The

22 question for us is whether the district court’s “decision is supported by substantial

                                              2
 1 evidence, not whether the court could have reached a different conclusion.” In re

 2 Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318, 323.

 3 “Substantial evidence means such relevant evidence as a reasonable mind might

 4 accept as adequate to support a conclusion[.]” State v. Salgado, 1999-NMSC-008, ¶

 5 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citation omitted).

 6        In our notice proposing summary affirmance, we relied upon the following

 7 facts. Jerry Lucero testified that while he and Defendant were incarcerated in the San

 8 Miguel Detention Center and playing a game of chess, Defendant asked Mr. Lucero

 9 if he would kill Defendant’s wife, Ms. Maier. [DS 2; RP 37-38] Mr. Lucero testified

10 that Defendant provided him with a map, phone numbers, a description of Ms. Maier’s

11 vehicle, and that Defendant mailed him a photograph of her. [DS 2] Corroborating

12 this story, it appears that Mr. Severo Vargas testified that he heard Defendant ask Mr.

13 Lucero to kill Defendant’s wife. [DS 2; RP 40-41] Ms. Elsie Lucero, Jerry Lucero’s

14 mother, testified that she received two phone calls from Defendant asking for her son

15 about a month after the alleged solicitation. [DS 2-3] In response to the phone calls,

16 it appears Ms. Lucero called Ms. Maier and warned her that she was in danger. [DS

17 3]

18        Our notice observed that Defendant testified and testified to a different version

19 of events. [DS 3] We stated that “[c]ontrary evidence supporting acquittal does not

20 provide a basis for reversal because the jury is free to reject Defendant’s version of

21 the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed

22 1998). We cautioned Defendant that on appeal, we resolve all conflicts in the

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 1 evidence in favor of the verdict and do not reweigh the evidence, make credibility

 2 determinations, or substitute our judgment for that of the fact finder. Cunningham,

 3 2000-NMSC-009, ¶ 26; Mora, 1997-NMSC-060, ¶ 27. Viewing the evidence in this

 4 manner, we proposed to hold that it was sufficient to establish the elements of

 5 solicitation to commit first degree murder as it was instructed to the jury. [RP 58]

 6        In response to our notice, Defendant argues that there was insufficient credible

 7 facts to support his conviction because the State relied upon the testimony of Mr.

 8 Lucero, a patently unreliable witness. [MIO 12] Defendant points out that Mr.

 9 Lucero’s story changed while he was on the stand when he testified on cross-

10 examination that Defendant did not directly ask him to kill his wife. [MIO 6]

11 Defendant claims the record shows that Defendant was only venting about his

12 impending divorce. [MIO 12] Defendant claims that he requested only the possibility

13 that Mr. Lucero store, buy, or sell some of Defendant’s belongings that were still at

14 Ms. Maier’s residence, and that is why Defendant provided Mr. Lucero with a map to

15 Ms. Maier’s home, a photograph of her, and some phone numbers. [MIO 4]

16 Defendant emphasizes that Mr. Lucero’s testimony was not credible because, when

17 Defendant was released, he left Ms. Maier alone and moved to Arizona, and Mr.

18 Lucero was still incarcerated. [MIO 4, 12]

19        Nevertheless, according to Defendant’s memorandum in opposition, there was

20 testimony presented that Mr. Lucero and Defendant had follow-up conversations

21 about the details of how Mr. Lucero would kill Ms. Maier [MIO 4; RP 38 (11:10:22)],

22 and Mr. Lucero understood that Defendant asked him to kill Ms. Maier [RP 39

                                              4
 1 (11:16:09); MIO 4], so much that Mr. Lucero informed his mother [RP 39 (11:16:17,

 2 11:17:43); MIO 7], who warned Ms. Maier. [DS 3] Also, we can imagine that

 3 Defendant’s move to Arizona could provide Defendant with an alibi for the possible

 4 killing. Therefore, Defendant’s conduct, leaving Ms. Maier alone and relocating to

 5 Arizona, is not inconsistent with the conviction for solicitation to commit murder.

 6 Also, the jury was free to reject Defendant’s testimony that the map, photograph, and

 7 phone numbers were intended for Mr. Lucero to recover Defendant’s property. See

 8 Rojo, 1999-NMSC-001, ¶ 19. The evidence of the map, photograph, and phone

 9 numbers also is consistent with Defendant’s conviction. Regardless, on appeal, we

10 can only speculate about the reasons for the jury’s credibility determinations and

11 conclusions in weighing the evidence and do not view inconsistent verdicts to be

12 necessarily erroneous or irrational. State v. Castaneda, 2001-NMCA-052, ¶ 7, 130

13 N.M. 679, 30 P.3d 368; cf. State v. Roper, 2001-NMCA-093, ¶¶ 23-24, 131 N.M. 189,

14 34 P.3d 133 (“We have frequently said that our business is to review the verdicts of

15 conviction . . . and thus we do not entertain contentions alleging that the verdicts are

16 irreconcilable.”). Defendant’s memorandum in opposition asks this Court to resolve

17 conflicts in the evidence not in favor of the verdict, reweigh the evidence, make

18 credibility determinations, and substitute our judgment for that of the fact finder,

19 which we have explained we cannot do on appeal. See Cunningham, 2000-NMSC-

20 009, ¶ 26; Mora, 1997-NMSC-060, ¶ 27. Viewing the evidence in a light most

21 favorable to the verdict, we hold that the evidence was adequate to support the jury’s

22 conclusions. See Salgado, 1999-NMSC-008, ¶ 25.

                                              5
 1 Ineffective Assistance of Counsel

 2        Lastly, Defendant asks whether he was denied the effective assistance of

 3 counsel. [MIO 13-16] “To establish a prima facie case of ineffective assistance of

 4 counsel, Defendant must show that (1) counsel’s performance was deficient in that it

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

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

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

 8 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (internal quotation marks and

 9 citation omitted).

10        In his response to our notice, Defendant states his claim with more particularity,

11 arguing that he was denied the effective assistance of counsel because trial counsel

12 failed to adequately apprise Defendant of the plea deal offered by the prosecutor and

13 because trial counsel failed to adequately challenge the credibility of the Mr. Lucero

14 by calling Defendant’s mother and bringing forth additional evidence. [MIO 15]

15        Defendant states that it is unclear whether the State’s plea offer was ever

16 reduced to writing or given to trial counsel. [MIO 5, 15] Defendant maintains,

17 however, that he was never shown a written plea offer and that his attorney only

18 briefly and vaguely alluded to a plea offer of four years incarceration. [MIO 5] This

19 basis for Defendant’s ineffective assistance of counsel claim has not been sufficiently

20 factually developed to constitute a prima facie showing. As we explained to

21 Defendant in our notice, we may only evaluate the facts that are part of the record and

22 that where the facts necessary to a full determination are not part of the record, an

                                               6
 1 ineffective assistance claim is more properly brought through a habeas corpus petition.

 2 See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61; State v. Telles,

 3 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (filed 1998); State v. Martinez,

 4 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his Court has

 5 expressed its preference for habeas corpus proceedings over remand when the record

 6 on appeal does not establish a prima facie case of ineffective assistance of counsel”).



 7        As for Defendant’s other basis for his ineffective assistance of counsel claim,

 8 Defendant noted in challenging the sufficiency of the evidence that trial counsel “did

 9 bring out some inconsistencies” in Mr. Lucero’s testimony, but failed to bring out

10 other inconsistencies. [MIO 6-7] We are not persuaded that Defendant’s contention

11 that further attacks on Mr. Lucero’s credibility about some prior inconsistent

12 statements he made at a hearing in magistrate court constitutes a prima facie case of

13 ineffective assistance of counsel. [Id.] Defendant does not identify the allegedly

14 inconsistent statements or at what magistrate court hearing Mr. Lucero allegedly made

15 them, and Defendant does not explain why the failure to make that attack constituted

16 incompetence and why that attack on Mr. Lucero’s credibility would have changed

17 the result. See Roybal, 2002-NMSC-027, ¶ 25 (“Counsel’s deficient performance

18 must represent so serious a failure of the adversarial process that it undermines

19 judicial confidence in the accuracy and reliability of the outcome.”). Also, Defendant

20 does not explain what testimony his mother would have offered and does not

21 specifically explain what additional evidence should have been discovered or

                                              7
 1 presented and why. [MIO 8] Therefore, this basis for Defendant’s ineffective

 2 assistance of counsel also lacks sufficient factual development in the record and

 3 should be raised in habeas proceedings.

 4       We make clear that the disposition of this case does not preclude Defendant

 5 from seeking habeas relief; he may raise these arguments in a collateral proceeding.

 6 See Telles, 1999-NMCA-013, ¶ 25.

 7       For the reasons stated in our notice and in this opinion, we affirm the district

 8 court’s judgment and sentence.

 9       IT IS SO ORDERED.


10                                        __________________________________
11                                        JONATHAN B. SUTIN, Judge

12 WE CONCUR:


13 _________________________________
14 CELIA FOY CASTILLO, Judge


15 _________________________________
16 LINDA M. VANZI, Judge




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