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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 29,916

 5 RICHARD VASQUEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 V. Lee Vesely, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Law Offices of Nancy L. Simmons, P.C.
13 Nancy L. Simmons
14 Albuquerque, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 FRY, Chief Judge.

18          Richard Vasquez (Defendant) appeals from the judgment, order, and

19 commitment to the corrections department, convicting him after a jury trial of four

20 counts of criminal sexual contact of a minor. [RP 183] Defendant raises one issue on
 1 appeal: whether Defendant was denied due process and a fair trial because necessary

 2 witnesses who were available to testify were not called at the trial of this matter. [DS

 3 7] On this issue claiming ineffective assistance of trial counsel, the calendar notice

 4 proposed summary affirmance on direct appeal. [CN1] Defendant has filed a

 5 memorandum in opposition that we have duly considered. [MIO] Unpersuaded,

 6 however, we affirm.

 7 DISCUSSION

 8        Counsel is presumed competent. State v. Jacobs, 2000-NMSC-026, ¶ 48, 129

 9 N.M. 448, 10 P.3d 127. There is a two-fold test for proving ineffective assistance of

10 counsel: the defendant must show that (1) counsel’s performance fell below that of

11 a reasonably competent attorney, and that (2) the defendant was prejudiced by the

12 deficient performance. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979

13 P.2d 729. The burden of proof is on the defendant to prove both prongs. Id.

14        In this case, Defendant was tried upon an indictment of nine charges, including

15 Counts 1 through 8 of criminal sexual contact of a minor (CSCM) and Count 9 of

16 criminal sexual penetration (child under 13) in the first degree (CSPM). [RP 2-2A]

17 After a jury trial on March 12, 2008, Defendant was convicted of Counts 1 though 4

18 (CSCM), he was acquitted of Count 9 (CSPM), and the jury could not reach a verdict




                                              2
 1 on Counts 5, 6, 7, and 8 (CSCM). [RP 98-103] The district court declared a mistrial,

 2 with power reserved by the State to retry Defendant. [RP 105]

 3        Defendant retained new counsel for the second trial. [RP 116] A second trial

 4 date was set and continued several times for various reasons. [RP 119, 132, 149]

 5 Defendant filed a list of witnesses and exhibits he intended to call at the second trial.

 6 [RP 140, 141, 161] Subsequently, the State filed a nolle prosequi of the counts on

 7 which the jury at the first trial had disagreed, Counts 5, 6, 7, and 8. [RP 164]

 8 Judgment was entered upon the jury’s verdict at the first trial, convicting Defendant

 9 of Counts 1 through 4 (CSCM). [RP 183] This appeal followed.

10        On appeal, Defendant argues that he was rendered ineffective assistance of

11 counsel at the first trial because his defense counsel did not call all the witnesses his

12 defense counsel for the second trial identified, including the victim’s grandmother,

13 Mr. Hinojos, and Ms. Gutierrez (a teacher and teacher’s aide). [DS 5] The victim

14 testified that although she told her grandmother and her teacher and teacher’s aide that

15 Defendant was sexually abusing her, they did nothing and did not report the abuse to

16 anyone. [DS 4] According to Defendant, the teacher and teacher’s aide would have

17 testified that they would have obeyed the law to report any allegation of sexual abuse

18 if the victim had in fact told them about it. [Id.]




                                               3
 1        In his memorandum, Defendant argues that this Court is taking the position that

 2 a criminal defendant cannot ever demonstrate, in the context of a direct appeal, that

 3 his trial counsel’s failure to call certain witnesses during trial would constitute

 4 ineffective assistance. [MIO 1] Defendant continues to point out that his docketing

 5 statement indicates that the teacher and the teacher’s aide would have testified that the

 6 victim never reported any abuse to either of them, contrary to the statement made by

 7 the victim. [MIO 3] Since this testimony would have impugned the credibility of the

 8 victim, Defendant contends, his first defense counsel’s failure to identify these

 9 witnesses and obtain their testimony constituted deficient performance that was highly

10 prejudicial to Defendant’s “ability to mount the best possible defense available to

11 him.” [MIO 3-4] Defendant argues that a full review of the testimony presented at

12 trial is necessary for a proper determination as to the scope of prejudice suffered by

13 Defendant as the result of his trial counsel’s deficient performance. [MIO 4] We are

14 not persuaded.

15        Defendant’s discussions with his counsel at the first trial as to what witnesses

16 should be called to testify for the defense are not matters of record for this Court to

17 review on direct appeal, whether this case is reviewed on the summary or the general

18 calendar. “When an ineffective assistance claim is first raised on direct appeal, we

19 evaluate the facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19,


                                               4
 1 132 N.M. 657, 54 P.3d 61.          In this case, there are facts necessary to a full

 2 determination that are not part of the record, and therefore, an ineffective assistance

 3 claim is more properly brought through a habeas corpus petition. Id.

 4        Moreover, whether the victim reported the abuse appears to be collateral to her

 5 testimony that the jury determined supported Defendant’s convictions for Counts 1

 6 through 4 (CSCM). In this regard, we note that on direct appeal Defendant is not

 7 contesting that substantial evidence was presented in support of his convictions. In

 8 addition, we note that Defendant’s first counsel was successful in obtaining an

 9 acquittal on the CSPM charge and a hung jury on Counts 5, 6, 7, and 8, which the

10 State later dropped. Further, Defendant has not shown that Defendant’s first counsel

11 was aware of these witnesses or whether he considered that a more effective trial

12 strategy was to rely on cross-examination of the victim rather than present these other

13 witnesses’ testimony. See Lytle v. Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22

14 P.3d 666 (stating that on appeal, we will not second guess the trial strategy and tactics

15 of the defense counsel); see also State v. Orona, 97 N.M. 232, 234, 638 P.2d 1077,

16 1079 (1982) (expressing that in the cool light of hindsight this may not seem to be the

17 best of tactics, but, of course, “bad tactics and improvident strategy do not necessarily

18 amount to ineffective assistance of counsel”). Finally, we cannot say whether the

19 testimony of these witnesses would have, in fact, helped or hindered Defendant’s


                                               5
 1 defense. See, e.g., State v. Baca, 1997-NMSC-045, ¶ 20, 124 N.M. 55, 946 P.2d 1066

 2 (stating that whether a defendant is prejudiced depends on whether the allegedly

 3 incompetent representation prejudiced the case such that but for counsel’s error, there

 4 is a reasonable probability that the result of the conviction proceeding would have

 5 been different), overruled on other grounds by State v. Belanger, 2009-NMSC-025,

 6 146 N.M. 357, 210 P.3d 783.

 7 CONCLUSION

 8        We hold, therefore, that Defendant has not made a prima facie case on direct

 9 appeal that his counsel was ineffective. See Rule 5-802 NMRA; see also State v.

10 Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (expressing a preference

11 for habeas corpus proceedings to address ineffective assistance of counsel claims).

12        IT IS SO ORDERED.



13
14                                         CYNTHIA A. FRY, Chief Judge

15 WE CONCUR:


16
17 CELIA FOY CASTILLO, Judge



18

                                              6
1 RODERICK T. KENNEDY, Judge




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