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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. A-1-CA-37526

 5 SERGIO GARIBAY,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
 8 Jennifer E. DeLaney, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VANZI, Judge.

18   {1}    Defendant appeals his conviction of criminal damage to property and

19 aggravated battery. [DS 2; MIO 1] In his docketing statement, Defendant challenged
 1 the sufficiency of the evidence, the denial of a motion for reduction of sentence, and

 2 asserted a claim of ineffective assistance of counsel. [DS 6] This Court issued a notice

 3 of proposed summary disposition, proposing to affirm. [CN 7] Defendant has filed a

 4 memorandum in opposition to that proposed disposition.

 5   {2}   In that memorandum, Defendant continues to assert that the trial evidence was

 6 insufficient to support his conviction, the district court should have reduced his

 7 sentence, and that he received ineffective assistance of counsel. [MIO 3, 5, 6] Having

 8 duly considered Defendant’s memorandum, we are unpersuaded. State v. Mondragon,

 9 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (explaining that the repetition

10 of earlier arguments does not meet a party’s burden to come forward and specifically

11 point out errors of law or fact in a notice of proposed summary disposition),

12 superceded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031,

13 ¶ 3, 297 P.3d 374.

14   {3}   In asserting that the trial evidence was insufficient, Defendant continues to rely

15 upon his own testimony that he was acting in self-defense. In doing so, Defendant

16 now directs our attention to State v. Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930,

17 which explained that “evidence from which a proposition can be derived only by

18 speculation among equally plausible alternatives is not substantial evidence of the

19 proposition.” (alteration, internal quotation marks and citation omitted). We do not

20 agree, however, that the jury was required to speculate among “equally plausible

                                               2
 1 alternatives” in this case; instead, the State offered evidence to support each element

 2 of the offense charged and Defendant also testified that he was acting in self-defense.

 3 Rather than requiring the jury to speculate, the evidence in this case simply required

 4 the jury to determine where, as between those two contradictory accounts, the truth

 5 lie. And that has long been the fundamental function of a jury: “to decide where the

 6 truth lies.” Westbrook v. Lea Gen. Hosp., 1973-NMCA-074, ¶ 10, 85 N.M. 191, 510

 7 P.2d 515; see State v. Alberico, 1993-NMSC-047, ¶ 84, 116 N.M. 156, 861 P.2d 192

 8 (noting that whether a witness is telling the truth “is for the jury to decide”); Green

 9 v. Kase, 1992-NMSC-004, ¶ 7, 113 N.M. 76, 823 P.2d 318 (describing a jury’s role

10 in determining the credibility of witnesses as “a critical component of the jury’s truth

11 finding function”); State v. Gilbert, 1933-NMSC-059, ¶ 6, 37 N.M. 435, 24 P.2d 280

12 (affirming the conviction of a defendant “in the unfortunate position of having failed

13 to impress the jury with the truth of his claim of self-defense”).

14   {4}   Defendant also continues to assert that the district court abused its discretion

15 by not reducing his sentence. We note, however, that it has long been the law in New

16 Mexico that the district court does not abuse its discretion by imposing a sentence that

17 is authorized by law. See State v. Augustus, 1981-NMCA-118, ¶ 7, 97 N.M. 100, 637

18 P.2d 50 (explaining that, “there being no claim that the sentence was not in

19 accordance with law, the trial court did not abuse its discretion in imposing a lawful

20 sentence upon [the] defendant”).

                                               3
 1   {5}   And, finally, Defendant continues to assert that he received ineffective

 2 assistance of counsel because some sort of evidence dealing with his victim’s behavior

 3 was not offered at trial. [MIO 6-7] As pointed out in our notice of proposed summary

 4 disposition, this issue was not developed below, meaning that it is not preserved for

 5 appeal and also that facts surrounding counsel’s trial strategy do not appear in the

 6 record. [CN 4-6] There are, for instance, no facts currently before this Court upon

 7 which we could base an assessment of whether trial counsel’s decisions were the

 8 result of a reasonable trial strategy. Similarly, we have no indication whether trial

 9 counsel expected the evidence at issue to be admissible, or what evidence the State

10 could have offered in rebuttal. As our proposed disposition pointed out, “facts bearing

11 directly upon trial counsel’s strategic decisions or communications between counsel

12 and client will not generally appear in the record.” [CN 6]

13   {6}   Fortunately, evidence related to such questions can generally be considered by

14 way of proceedings pursuant to Rule 5-802 NMRA and that is “the preferred avenue

15 for adjudicating ineffective assistance of counsel claims.” Duncan v. Kerby,

16 1993-NMSC-011, ¶ 4, 115 N.M. 344, 851 P.2d 466. Indeed, “habeas corpus is

17 specifically designed to address such post-conviction constitutional claims and is the

18 procedure of choice in this situation.” Id. If Defendant believes he can demonstrate

19 ineffectiveness if given the opportunity to present evidence at a hearing, he remains

20 free to do so pursuant to that rule.

                                              4
1   {7}   Thus, for the foregoing reasons as well as those stated in our notice of proposed

2 summary disposition, we affirm the judgment and sentence of the district court

3 without prejudice to Defendant’s opportunity to pursue a claim of ineffective

4 assistance of counsel in post-conviction proceedings.

5   {8}   IT IS SO ORDERED.


6                                          __________________________________
7                                          LINDA M. VANZI, Judge


8 WE CONCUR:



 9 _________________________________
10 JENNIFER A. ATTREP, Judge



11 _________________________________
12 KRISTINA BOGARDUS, Judge




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