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

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                             NO. 29,419

 5 SCOTT D. THOMPSON,

 6       Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John Dean, District Judge

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

11 for Appellee

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

15 for Appellant

16                             MEMORANDUM OPINION

17 VIGIL, Judge.

18       Defendant Scott D. Thompson appeals from his conviction for kidnapping and

19 battery. We issued a notice of proposed summary disposition, proposing to summarily

20 affirm. Defendant has filed a joint memorandum in opposition and motion to amend
 1 the docketing statement, which we have duly considered. Because we remain

 2 unpersuaded by Defendant’s assertions of error, we affirm.

 3 DISCUSSION

 4 Motion to Amend

 5         We will begin our discussion with Defendant’s motion to amend the docketing

 6 statement. Defendant seeks to raise an additional issue of whether the State presented

 7 sufficient evidence to support his kidnapping conviction. [MIO 1-2]

 8        Defendant asserts that the evidence was insufficient to show that Defendant

 9 kidnapped Matthew Shetima. [Id. 4-7] “Substantial evidence review requires analysis

10 of whether direct or circumstantial substantial evidence exists and supports a verdict

11 of guilt beyond a reasonable doubt with respect to every element essential for

12 conviction. We determine whether a rational factfinder could have found that each

13 element of the crime was established beyond a reasonable doubt.” State v. Kent,

14 2006-NMCA-134, ¶10, 140 N.M. 606, 145 P.3d 86 (citations omitted). “In reviewing

15 the sufficiency of the evidence, we must view the evidence in the light most favorable

16 to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in

17 the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26,

18 128 N.M. 711, 998 P.2d 176.



                                               2
 1        In order to convict Defendant of kidnapping as charged, the State was required

 2 to prove beyond a reasonable doubt that (1) “the defendant took, restrained and/or

 3 confined Matthew Shetima by force, intimidation and/or deception;” and (2) “the

 4 defendant intended to hold Matthew Shetima against Matthew Shetima’s will to inflict

 5 physical injury on Matthew Shetima.” [RP 46] See UJI 14-403 NMRA. As Defendant

 6 acknowledges, Shetima testified that while he was walking through an alley,

 7 Defendant called him over to a motel where he was standing with Craig Yazzie and

 8 Jerry Paul. [MIO 2; RP 78] Shetima testified that Defendant hit him in the face and

 9 then Yazzie dragged him into a motel room where the three individuals continued to

10 hit and kick Shetima. [MIO 2-3; RP 77-78] Shetima testified that when the beating

11 was over, he ran out of the room. [MIO 3; RP 77] Defendant followed but the other

12 two told him to leave Shetima alone. [Id.] Testifying in his own defense, Defendant

13 told a different story. Defendant testified that he asked Shetima to come into the

14 motel room and that Shetima attacked him first. [MIO 3-4; RP 82] Defendant then hit

15 Shetima back three or four times. [Id.] He claimed he did not tackle Shetima but

16 tripped him and kicked him while he was on the ground. [MIO 4; RP 82] He said he

17 felt sorry for Shetima, told Paul to leave him alone, and told Shetima to leave. [Id.]

18        Defendant contends that there was insufficient evidence to support the

19 conviction for kidnapping because there was conflicting testimony about whether

                                              3
 1 Shetima was dragged into the motel room or walked in on his own. [MIO 6] We

 2 disagree. Shetima’s testimony satisfied the State’s burden of proof with respect to

 3 each element of the offense. See State v. Soliz, 80 N.M. 297, 298, 454 P.2d 779, 780

 4 (Ct. App. 1969) (“As a general rule, the testimony of a single witness is sufficient

 5 evidence for a conviction.”). Although Defendant offered conflicting testimony, this

 6 evidence does not provide a basis for reversal because the jury was free to reject

 7 Defendant’s version of the facts. See State v. Salas, 1999-NMCA-099, ¶ 13, 127

 8 N.M. 686, 986 P.2d 482 (recognizing that it is for the factfinder to resolve any conflict

 9 in the testimony of the witnesses and to determine where weight and credibility lay).

10 Because we find no merit in Defendant’s challenge to the sufficiency of the evidence,

11 Defendant does not raise a viable issue. We therefore reject his motion to amend the

12 docketing statement.

13 Ineffective Assistance of Counsel

14        Defendant continues to advance a claim of ineffective assistance of counsel

15 pursuant to State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967) and State

16 v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985). [Amended DS 3;

17 MIO 7-10] There is a two fold test for proving ineffective assistance of counsel; the

18 defendant must show (1) that counsel’s performance fell below that of a reasonably

19 competent attorney, and (2) that defendant was prejudiced by the deficient

                                               4
 1 performance. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729.

 2 The burden of proof is on the defendant to prove both prongs.               Id. In his

 3 memorandum, Defendant challenges trial counsel’s performance in failing to notice

 4 an error in the criminal information. [MIO 7] Defendant acknowledges that the

 5 mistake was corrected before the case was submitted to the jury. [Id. 8] Defendant

 6 also claims that the record in this case does not contain sufficient information to

 7 address the ineffective assistance of counsel issue on the merits. [Id. 9] Thus, we are

 8 unable to evaluate either the reasonableness of counsel’s actions, or the prejudice

 9 caused by any of the alleged deficiencies. We must therefore reject Defendant’s

10 ineffective assistance of counsel claim for failure to make a prima facie showing, see

11 State v. Swavola, 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct. App. 1992) (limiting

12 remand in ineffective assistance cases to those “in which the record on appeal

13 establishes a prima facie case of ineffective assistance”), and recommend habeas

14 proceedings as the appropriate avenue for any further argument on the matter. See

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

16 preference for habeas corpus proceedings to address ineffective assistance of counsel

17 claims).

18 CONCLUSION



                                              5
1       For the foregoing reasons, as well as the reasons stated in the notice of proposed

2 summary disposition, Defendant’s conviction is affirmed.

3       IT IS SO ORDERED.

4
5
6                                         MICHAEL E. VIGIL, Judge
7 WE CONCUR:


8
9 MICHAEL D. BUSTAMANTE, Judge


10
11 RODERICK T. KENNEDY, Judge




                                             6
