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


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                     NO. 28,955

 5 MICHAEL BERRY,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 Frank K Wilson, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Nina Lalevic, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                             MEMORANDUM OPINION

17 CASTILLO, Judge.

18       Defendant appeals his convictions for criminal damage to property and battery.

19 We issued a notice of proposed summary disposition, proposing to affirm. Defendant
 1 has filed memorandum in opposition, which we have duly considered. Because we

 2 remain unpersuaded, we uphold Defendant’s convictions.

 3        First, Defendant challenges the sufficiency of the evidence to establish that he

 4 was sane at the time he committed the offenses. [MIO 3-7] When examining a

 5 challenge to the sufficiency of the evidence, this Court must view the evidence in the

 6 light most favorable to the State, resolving all conflicts and indulging all reasonable

 7 inferences to uphold the verdict. State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870,

 8 874 (1994). “This [C]ourt does not weigh the evidence and may not substitute its

 9 judgment for that of the fact finder so long as there is sufficient evidence to support

10 the verdict. The fact finder may reject defendant’s version of the incident.” State v.

11 Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (citation omitted).

12        The State appears to have relied to some extent on the presumption of sanity.

13 [DS 5] This is a permissible approach. “Under our law the defendant is presumed to

14 have been sane at the time of the alleged crimes, which casts upon him the necessity

15 of going forward with the evidence tending to show that he was insane. This

16 presumption of sanity continues to operate through the trial.” State v. Hartley, 90

17 N.M. 488, 489-90, 565 P.2d 658, 659-60 (1977) (citations omitted). Moreover, “the

18 presumption of sanity does not disappear and is not extinguished by evidence tending

19 to show insanity.” State v. Wilson, 85 N.M. 552, 555, 514 P.2d 603, 606 (1973).


                                              2
 1 Accordingly, the State may elect to rely on the presumption of sanity, even if the

 2 defense has introduced evidence tending to show insanity. See id. (observing that the

 3 State is not required to affirmatively prove sanity; rather, it may elect to rely on the

 4 presumption of sanity); State v. Moore, 42 N.M. 135, 155, 76 P.2d 19, 31 (1938)

 5 (“When . . . evidence is received which tends to show that the accused was insane at

 6 the time of the alleged offense, then . . . an issue is raised as to the mental condition

 7 of the accused, and it becomes the duty of the jury to determine such issue from the

 8 evidence independent of the presumption of sanity. If the jury, however, disbelieves

 9 the evidence, then the presumption stands.” (emphasis original)).

10        In addition to relying on the presumption of sanity, the State also appears to

11 have presented indirect evidence of Defendant’s sanity at trial. As we previously

12 observed, a number of eyewitnesses testified that Defendant pursued his girlfriend to

13 the home of a neighbor, where he instigated a fist fight. [DS 2] The witnesses then

14 saw Defendant attack a vehicle and the windows of a trailer with a tire rim, and assault

15 a truck with his fists, feet, and a gas grill. [DS 3] The State also elicited evidence that

16 Defendant was angry and intoxicated at the time. [DS 5] In the course of cross-

17 examination, two expert witnesses appear to have acknowledged that Defendant’s

18 conduct could have been the product of his anger and intoxication, rather than

19 insanity. [RP 94-96, 104, 106] Finally, we gather that the State presented evidence


                                                3
 1 of a course of conduct surrounding the violent episode, including retrieving and then

 2 hiding destructive tools and/or weapons and subsequently attempting to evade the

 3 police, which suggested cognition and control. [RP 96-97, 103] We conclude that

 4 the foregoing evidence, together with the presumption of sanity, provides adequate

 5 support for the jury’s ultimate determination that Defendant was sane at the time he

 6 committed the offenses.

 7        Defendant urges the Court to reverse, based on the testimony of the two expert

 8 witnesses who opined that Defendant was not sane at the time of the underlying

 9 incidents. [DS 4-5; MIO 2-4, 6-7] However, as we previously observed, the jury was

10 at liberty to reject their opinions and arrive at their own conclusions about

11 Defendant’s sanity. See State v. Noble, 90 N.M. 360, 364, 563 P.2d 1153, 1157

12 (1977) (“[T]he rule in New Mexico is that expert testimony on the issue of insanity

13 is not binding of the factfinder and that the jury may believe or disbelieve expert

14 testimony as it chooses.”); Moore, 42 N.M. at 160, 76 P.2d at 34 (“It is for the jury to

15 reach a conclusion as to the sanity or insanity of the accused. The province of the

16 experts is to aid the jury in reaching a conclusion. Their opinions are not to be taken

17 as conclusive. The judgments of experts or the inferences of skilled witnesses, even

18 when unanimous and uncontroverted, are not necessarily conclusive on the jury, but

19 may be disregarded by it.”); and see, e.g., State v. Dorsey, 93 N.M. 607, 610, 603 P.2d


                                              4
 1 717, 720 (1979) (upholding a jury’s rejection of an insanity defense despite the fact

 2 that the defense was supported by the testimony of two psychologists and one

 3 psychiatrist); State v. Gardner, 85 N.M. 104, 107-08, 509 P.2d 871, 874-75 (1973)

 4 (upholding the jury’s rejection of an insanity defense, despite the testimony of two

 5 experts to the effect that the defendant was insane and despite the State’s failure to

 6 present conflicting evidence in rebuttal, where aspects of the experts’ testimony were

 7 conflicting and unclear); State v. Victorian, 84 N.M. 491, 496, 505 P.2d 436, 441

 8 (1973) (observing that neither the court nor the jury is required to accept the opinions

 9 of psychiatrists or psychologists as to a defendant’s probable mental condition or

10 capacity); Mireles, 2004-NMCA-100, ¶ 35 (“It [is] the fact-finder’s prerogative . . .

11 to reject the testimony of both experts and determine that Defendant was neither

12 legally insane nor mentally ill.”). In light of these well-established principles, we

13 decline Defendant’s invitation to re-weigh the testimony and reject his challenge to

14 the sufficiency of the evidence.

15        By his second issue, Defendant seeks to challenge the propriety of the State’s

16 reliance on the presumption of sanity, contending that this approach violates the

17 presumption of innocence and effectively permits the State to evade its burden of

18 proving guilt beyond a reasonable doubt. [MIO 8-9] However, as we previously

19 noted, Defendant’s argument runs afoul of controlling precedent. See State v. Lujan,


                                              5
 1 87 N.M. 400, 403, 534 P.2d 1112, 1115 (1975) (concluding that the recognition of the

 2 presumption of sanity does not impermissibly shift the burden of proof to the defense

 3 or otherwise violate due process). As illustrated by the preceding discussion, the

 4 presumption of sanity is a longstanding fixture of our jurisprudence, which has been

 5 consistently recognized and applied by the New Mexico Supreme Court. Because we

 6 are not at liberty to revisit the matter, see Alexander v. Delgado, 84 N.M. 717, 718,

 7 507 P.2d 778, 779 (1973) (holding that the Court of Appeals is bound by Supreme

 8 Court precedent), overruled on other grounds by State v. Reynolds, 98 N.M. 527, 650

 9 P.2d 811 (1982), we reject Defendant’s second argument.

10        Third and finally, Defendant claims ineffective assistance of counsel. [MIO 9-

11 12] “To prevail on a claim of ineffective assistance of counsel, a defendant must show

12 that counsel’s performance fell below that of a reasonably competent attorney, and

13 that the defendant was prejudiced by the deficient performance.” State v. Stone, 2008-

14 NMCA-062, ¶ 27, 144 N.M. 78, 183 P.3d 963. “The burden of proof is on the

15 defendant to prove both prongs.” Id.

16        Defendant bases his claim of ineffective assistance on his attorney’s failure to

17 introduce records of his history of psychiatric care into evidence. [MIO 9] However,

18 we have no way to determine whether the introduction of the hospital records would

19 have benefitted the defense. Because counsel’s failure to introduce the records may


                                              6
 1 have been strategic, and because the prejudicial effect of that election is entirely

 2 speculative, Defendant has not made out a prima facie case of ineffective assistance.

 3 See generally State v. Jacobs, 2000-NMSC-026, ¶ 49, 129 N.M. 448, 10 P.3d 127 (“A

 4 prima facie case for ineffective assistance of counsel is not made if there is a plausible,

 5 rational strategy or tactic to explain the counsel’s conduct.”); Duncan v. Kerby, 115

 6 N.M. 344, 348-49, 851 P.2d 466, 470-71 (1993) (holding that prejudice must be

 7 shown before a defendant is entitled to relief based on ineffective assistance of

 8 counsel).

 9        Despite his failure to make a prima facie showing of ineffective assistance of

10 counsel, Defendant urges the court to remand for an evidentiary hearing. [MIO 11-12]

11 We decline to do so. See generally State v. Herrera, 2001-NMCA-073, ¶ 35, 131

12 N.M. 22, 33 P.3d 22 (“A remand for an evidentiary hearing is appropriate only when

13 the record on appeal establishes a prima facie case of ineffective assistance of

14 counsel.”). To the extent that Defendant may wish to pursue the matter further, we

15 suggest that habeas corpus proceedings would be a more appropriate avenue. See

16 generally State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31

17 (“This Court has expressed its preference for habeas corpus proceedings over remand

18 when the record on appeal does not establish a prima facie case of ineffective

19 assistance of counsel.”).


                                                7
1      For the reasons stated, we affirm.

2      IT IS SO ORDERED.

3                                               ________________________________
4                                               CELIA FOY CASTILLO, Judge

5 WE CONCUR:



6 ________________________________
7 LINDA M. VANZI, Judge



8 ________________________________
9 TIMOTHY L. GARCIA, Judge




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