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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. 35,522

 5 RUDY GUAJARDO,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Steven L. Bell, District Judge



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

11 for Appellee

12 Law Offices of Jennifer J. Wernersbach, P.C.
13 Jennifer J. Wernersbach
14 Albuquerque, NM

15 for Appellant

16                                  MEMORANDUM OPINION

17 WECHSLER, Judge.
 1   {1}   Defendant Rudy Guajardo appeals from his convictions, after a jury trial, of five

 2 counts of criminal sexual contact of three different minor girls (CSCM), contrary to

 3 NMSA 1978, Section 30-9-13(B)(1), (C)(1), (D)(1) (2003). In this Court’s notice of

 4 proposed disposition, we proposed to summarily affirm. Defendant filed a

 5 memorandum in opposition (MIO), which we have duly considered. Remaining

 6 unpersuaded, we affirm Defendant’s convictions.

 7 Issue I: Sufficiency of the Evidence

 8   {2}   Defendant continues to argue that there was insufficient evidence to support his

 9 convictions. [MIO 5-7] Defendant raises no new facts or authority that are not

10 otherwise addressed by this Court’s notice of proposed disposition, so we refer

11 Defendant thereto. [CN 2-10] Although Defendant contends on appeal that A.B.’s

12 testimony does not support his convictions for CSCM as to her because she “did not

13 testify that on two separate occasions [Defendant] touched all three of the listed parts

14 of her body[,]” but, instead, testified that the touching happened on different occasions

15 [MIO 6-7], such contentions are raised based only on a conversation with Defendant.

16 [See MIO 6-7] Conversely, in Defendant’s docketing statement, his trial counsel stated

17 that A.B. testified that Defendant touched her breasts, buttocks, and vagina on

18 different occasions—i.e., that Defendant touched all three parts on different

19 occasions—and made no comment or argument that the testimony separated the acts

                                               2
 1 into different occasions. [See DS 4] As Defendant is not an officer of the Court and

 2 is not bound by the duty of candor toward the tribunal, see State v. Coleman, No.

 3 34,088, mem. op. ¶ 3 (N.M. Ct. App. Jun. 29, 2015) (non-precedential) (noting that,

 4 “[u]nlike trial counsel, . . . a defendant is not an officer of the Court and is not bound

 5 by a duty of candor towards the tribunal”), we need not and do not rely on

 6 Defendant’s iteration of the testimony at trial as evidence as we would trial counsel’s

 7 iteration absent the record showing otherwise. See State v. Calanche, 1978-NMCA-

 8 007, ¶ 10, 91 N.M. 390, 574 P.2d 1018 (stating that factual recitations in the docketing

 9 statement are accepted as true unless the record on appeal shows otherwise).

10   {3}   Further, we reiterate that the jury was free to reject Defendant’s version of the

11 facts. State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Indeed,

12 “[o]n appeal, the appellate courts review sufficiency of the evidence from a highly

13 deferential standpoint.” State v. Slade, 2014-NMCA-088, ¶ 13, 331 P.3d 930

14 (omission, internal quotation marks, and citation omitted). “All evidence is viewed in

15 the light most favorable to the [S]tate, and we resolve all conflicts and make all

16 permissible inferences in favor of the jury’s verdict.” Id. (alterations, internal

17 quotation marks, and citation omitted). We “do not search for inferences supporting

18 a contrary verdict or re-weigh the evidence because this type of analysis would




                                               3
 1 substitute an appellate court’s judgment for that of the jury.” Id. (internal quotation

 2 marks and citation omitted).

 3   {4}   Moreover, to the extent Defendant argues that A.B.’s testimony could be taken

 4 that way, we reiterate that we do not re-weigh the evidence, see id., but, instead,

 5 “defer to the [fact-finder] when it weighs the credibility of witnesses and resolves

 6 conflicts in witness testimony.” See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M.

 7 686, 986 P.2d 482; State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d

 8 1156. Additionally, as we have explained, “circumstantial evidence alone can amount

 9 to substantial evidence.” State v. Flores, 2010-NMSC-002, ¶ 19, 147 N.M. 542, 226

10 P.3d 641. Thus, for these reasons and those stated in our notice of proposed

11 disposition, we conclude that there was sufficient evidence to support Defendant’s

12 convictions.

13 Issue II: Ineffective Assistance of Counsel

14   {5}   Defendant continues to argue that he was denied effective assistance of counsel

15 because his trial counsel failed to move to sever the three Victims’ cases. [MIO 8–11]

16 Defendant acknowledges that some of his allegations supporting his argument for

17 ineffective assistance of counsel are based on facts outside of the record. [MIO 10] As

18 such, as we indicated in our notice of proposed disposition, a habeas corpus

19 proceeding is the preferred avenue. [See CN 11–12] See State v. Roybal,


                                              4
 1 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (“When an ineffective assistance

 2 claim is first raised on direct appeal, we evaluate the facts that are part of the record.

 3 If facts necessary to a full determination are not part of the record, an ineffective

 4 assistance claim is more properly brought through a habeas corpus petition[.]”); see

 5 also State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (stating that

 6 “[h]abeas corpus proceedings are the preferred avenue for adjudicating ineffective

 7 assistance of counsel claims, because the record before the trial court may not

 8 adequately document the sort of evidence essential to a determination of trial counsel's

 9 effectiveness” (alteration, internal quotation marks, and citation omitted)). To the

10 extent Defendant continues to make the same argument that he made in his docketing

11 statement, we refer Defendant to our notice of proposed disposition [see CN 10–12]

12 and reiterate that we do not second guess trial counsel’s tactics. See State v. Bernard,

13 2015-NMCA-089, ¶ 35, 355 P.3d 831 (stating that we do not second guess trial

14 strategy and tactics on appeal and that “[w]e do not find ineffective assistance of

15 counsel if there is a plausible, rational trial strategy or tactic to explain counsel’s

16 conduct” (internal quotation marks and citation omitted)). We therefore conclude that

17 Defendant has failed to establish a prima facie case of ineffective assistance of

18 counsel.

19 Issue III: Motorcycle Gang


                                               5
 1   {6}   Finally, Defendant continues to argue that his sentence was unfair and

 2 improperly influenced by the presence in the courtroom during sentencing of the

 3 motorcycle gang “Guardian Angels.” [MIO 11–12; DS 5] Again, Defendant has not

 4 introduced any new facts or legal authority that is not otherwise addressed by our

 5 notice of proposed disposition, so we refer Defendant thereto. [CN 12–13] We

 6 conclude that the district court did not abuse its discretion in imposing its sentence

 7 notwithstanding the presence of a motorcycle gang.

 8   {7}   Accordingly, for all of these reasons and those stated in our notice of proposed

 9 disposition, we conclude that Defendant failed to show error on appeal. See Hennessy

10 v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have

11 repeatedly held that, in summary calendar cases, the burden is on the party opposing

12 the proposed disposition to clearly point out errors in fact or law.”); State v.

13 Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that a

14 party responding to a summary calendar notice must come forward and specifically

15 point out errors of law and fact, and the repetition of earlier arguments does not fulfill

16 this requirement), superseded by statute on other grounds as stated in State v. Harris,

17 2013-NMCA-031, ¶ 3, 297 P.3d 374.

18   {8}   We therefore affirm Defendant’s convictions.

19   {9}   IT IS SO ORDERED.


                                               6
1                                        ________________________________
2                                        JAMES J. WECHSLER, Judge


3 WE CONCUR:


4 ________________________________
5 LINDA M. VANZI, Chief Judge


6 ________________________________
7 M. MONICA ZAMORA, Judge




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