     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,


 4 v.                                                            NO. 31,741

 5 LARRY LUEVANO,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 J. Richard Brown, District Judge


 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Ralph E. Trujillo, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 The Appellate Law Offices of Scott M. Davidson
15 Scott M. Davidson
16 Albuquerque, NM

17 for Appellant
 1                              MEMORANDUM OPINION

 2 HANISEE, Judge.

 3   {1}   Larry Luevano (Defendant) was convicted of one count of criminal sexual

 4 penetration in the first degree of a child under thirteen years of age (CSPM), pursuant

 5 to NMSA 1978, Section 30-9-11(D)(1) (2009). Defendant appeals, arguing that: (1)

 6 there was insufficient evidence to support his conviction; (2) the district court

 7 fundamentally erred in admitting evidence of other uncharged sexual acts; and (3) his

 8 trial counsel was ineffective. We affirm.

 9 BACKGROUND

10   {2}   Following allegations by his stepdaughter (Victim), Defendant was charged

11 with one count of first-degree CSPM. The criminal information alleged that “on or

12 about October, 2009, . . . [D]efendant did cause [Victim] to engage in the insertion,

13 to any extent, of his fingers into the vagina of [Victim], and [Victim] was twelve years

14 of age or younger” at the time of the penetration. At trial, Victim testified that

15 Defendant penetrated her vagina with his finger(s), not once as alleged in the

16 indictment, but on four separate occasions over a four-year period. While Victim

17 could not recall the specific dates of the penetrations, she testified that each took place

18 within New Mexico, and the last incident occurred around Halloween 2009, before

19 she turned twelve years old. At no point did Defendant object to admission of

                                                2
 1 Victim’s testimony regarding the three uncharged acts of CSPM; moreover,

 2 Defendant’s counsel cross-examined Victim regarding these uncharged acts.

 3   {3}   At the conclusion of the State’s case, the defense moved to “dismiss . . . or for

 4 a directed verdict” on the basis that Victim’s testimony was sporadic, and the State

 5 failed to meet its burden to establish a prima facie case. The court denied the motion,

 6 stating that the issues raised by the defense were for the jury to resolve, and “a

 7 reasonable trier of fact could find [Defendant] guilty.” Defendant took the stand and

 8 testified that he never sexually penetrated Victim and speculated that the allegations

 9 arose from an argument with Victim. Contrary to Defendant’s testimony, the jury

10 returned a guilty verdict on the single count of CSPM.

11 DISCUSSION

12 I.      Sufficient Evidence Supported Defendant’s Conviction

13   {4}   Defendant argues that Victim’s testimony was inherently unreliable and as such

14 was insufficient to justify a determination of guilt beyond a reasonable doubt when

15 considered by a rational factfinder.1 “The test for sufficiency of the evidence is

16 whether substantial evidence of either a direct or circumstantial nature exists to

17 support a verdict of guilty beyond a reasonable doubt with respect to every element

18 essential to a conviction.” State v. Fierro, 2014-NMCA-004, ¶ 35, 315 P.3d 319

           1
18           Although Defendant reserves the argument related to insufficient evidence for
19 later in the brief in chief, for the purposes of brevity and clarity, we address it first.

                                               3
 1 (internal quotation marks and citation omitted). “[S]ubstantial evidence [is] such

 2 relevant evidence as a reasonable mind might accept as adequate to support a

 3 conclusion.” State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661

 4 (internal quotation marks and citation omitted). Evidence is reviewed in the light most

 5 favorable to upholding the verdict. Fierro, 2014-NMCA-004, ¶ 35. Questions

 6 regarding the credibility of witnesses and the weight to be given of their testimony are

 7 determined by the jury. State v. Vigil, 1975-NMSC-013, ¶ 16, 87 N.M. 345, 533 P.2d

 8 578. Where a jury verdict in a criminal case is supported by substantial evidence, the

 9 verdict will not be disturbed on appeal. State v. Sutphin, 1988-NMSC-031, ¶ 21, 107

10 N.M. 126, 753 P.2d 1314.

11   {5}   Here, Defendant was charged with CSPM, pursuant to Section 30-9-11(D)(1).

12 To convict Defendant of this charge, the jury was instructed that it must find that the

13 State proved beyond a reasonable doubt that: (1) “[D]efendant caused the insertion,

14 to any extent, of his finger into the vagina of [Victim];” (2) Victim “was a child under

15 the age of thirteen (13);” and (3) “[t]his happened in New Mexico on or about October

16 2009.” See UJI 14-957 NMRA.

17   {6}   Our review of the record indicates that Victim testified that around Halloween

18 2009, at her home, Defendant penetrated her vagina with his finger(s). Specifically,

19 Victim stated that “the last time [she could] remember,” Defendant “once again put


                                              4
 1 [a] blanket over [them] . . . and then he did what he did last time.” The State sought

 2 to clarify this statement, and Victim acknowledged that she was “talking about

 3 [Defendant] putting his finger in [her] vagina.” Victim stated that this occurred in her

 4 home, which she previously testified was located in Artesia, New Mexico. Victim’s

 5 testimony satisfied each element required for conviction of CSPM. See UJI 14-957.

 6 Although Defendant argues that “[n]o rational factfinder could have found that the

 7 State had proved the essential elements of the offense beyond a reasonable doubt in

 8 light of the many gaps in [Victim’s] memory . . . and the inherent implausibility

 9 of . . . her testimony,” it is the duty of the jury to weigh the credibility of the

10 witnesses. State v. Santillanes, 1974-NMCA-092, ¶ 2, 86 N.M. 627, 526 P.2d 424.

11 “We emphasize that the finder of fact, not an appellate court, must reconcile any

12 conflicts in the evidence and determine where truth and credibility lies. The fact finder

13 can choose to believe the State’s testimony and disbelieve Defendant’s version of

14 events.” Fierro, 2014-NMCA-004, ¶ 40. Viewing the evidence in the light most

15 favorable to the verdict, we conclude that the testimony of Victim is sufficient to

16 support Defendant’s conviction.

17 II.     The District Court Did Not Commit Fundamental Error in Admitting the
18         Other Acts Evidence

19   {7}   As a second point of appeal, Defendant argues that the district court erred in

20 admitting testimony regarding uncharged incidents of CSPM as this evidence was

                                               5
 1 inadmissible under Rule 11-404(B) NMRA. Because Defendant failed to raise an

 2 objection to this testimony in district court, we review only for fundamental error. See

 3 Rule 12-216(B)(2) NMRA (providing an appellate court the discretion to review

 4 questions of fundamental error or fundamental rights as an exception to the

 5 preservation rule); State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633;

 6 State v. Laney, 2003-NMCA-144, ¶ 47, 134 N.M. 648, 81 P.3d 591. “For an error to

 7 be deemed fundamental, it must go to the foundation or basis of a defendant’s rights

 8 or must go to the foundation of the case or take from the defendant a right which was

 9 essential to his defense and which no court could or ought to permit him to waive.”

10 State v. Romero, 2013-NMCA-101, ¶ 8, 311 P.3d 1205 (internal quotation marks and

11 citation omitted). In order for us to determine that a fundamental error occurred, we

12 must conclude that the error was of such magnitude that it affected the outcome of the

13 trial, resulted in a denial of substantial justice, a miscarriage of justice, or a conviction

14 that shocks the conscience. State v. Dietrich, 2009-NMCA-031, ¶ 30, 145 N.M. 733,

15 204 P.3d 748.

16   {8}   Rule 11-404(B)(1) prohibits the use of “[e]vidence of a crime, wrong, or other

17 act . . . to prove a person’s character in order to show that on a particular occasion the

18 person acted in accordance with the character.” Pursuant to this rule, Defendant argues

19 that Victim’s testimony regarding the uncharged incidents of CSPM were highly


                                                 6
 1 prejudicial, and the jury likely submitted a guilty verdict based on this testimony, as

 2 there was insufficient evidence to convict based on the testimony related to the

 3 charged offense. Initially, we note that we have already determined that Victim

 4 provided sufficient testimony to establish each of the requisite elements for the

 5 October 2009 charge of CSPM. Based on a note the jury submitted inquiring into the

 6 other incidents Victim had alleged in her testimony, Defendant argues that the jury

 7 based its verdict upon “[its] belief that [the crime] might have occurred on one or

 8 more of the times discussed at . . . trial.” Responding to the note, the district court

 9 instructed the jury that it “must rely on the instructions presented” to it. The record

10 indicates that the jury was instructed that in order to convict Defendant, it must have

11 found that the penetration occurred “on or about October 2009.” The jury was not

12 instructed as to any other date, and was further instructed that it is the duty of the jury

13 to “follow the law as contained in [the] instructions.” Our Supreme Court has

14 determined that we presume juries have followed the written instructions provided to

15 them. State v. Smith, 2001-NMSC-004, ¶ 40, 130 N.M. 117, 19 P.3d 254. Moreover,

16 under Rule 11-404(B), we note that it is not certain that the testimony of other acts

17 would have been disallowed in the first instance. Exceptions to Rule 11-404(B)

18 include admitting evidence for “another purpose, such as proving motive, opportunity,

19 intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”


                                                7
 1 Rule 11-404(B)(2). We have in the past upheld allowance of other acts evidence in the

 2 context of sexual abuse. See State v. Sena, 2008-NMSC-053, ¶¶ 16-17, 144 N.M. 821,

 3 192 P.3d 1198; State v. Trujillo, 1995-NMCA-008, ¶ 18, 119 N.M. 772, 895 P.2d 672.

 4

 5   {9}    We conclude that Defendant has failed to demonstrate that the admission of the

 6 testimony related to the uncharged incidents of CSPM was of “such magnitude that

 7 it affect[ed] the outcome of the trial[,]” resulted in a denial of substantial justice,

 8 miscarriage of justice, or a conviction that shocks the conscience. Dietrich, 2009-

 9 NMCA-031, ¶ 35. Accordingly, we will not reverse Defendant’s conviction on the

10 basis of fundamental error.

11 III.     Defendant Failed to Establish a Prima Facie Case of Ineffective Assistance
12          of Counsel

13   {10}   Defendant’s final argument is that he received ineffective assistance of counsel

14 based on defense counsel’s: (1) failure to object to Victim’s testimony about the first

15 three incidents of criminal sexual penetration, and (2) misguided arguments to both

16 the judge and jury, including a statement during closing argument indicating

17 agreement with the prosecutor. Defendant requests that this Court grant a new trial

18 with effective counsel or remand for an evidentiary hearing to determine whether

19 counsel was effective. Defendant additionally requests that this Court not preclude

20 him from pursuing his claim in a collateral habeas corpus proceeding.

                                                8
 1   {11}   We review ineffective assistance of counsel claims de novo. State v. Bahney,

 2 2012-NMCA-039, ¶ 48, 274 P.3d 134. A prima facie case of ineffective assistance of

 3 counsel requires that Defendant demonstrate that: “(1) counsel’s performance fell

 4 below that of a reasonably competent attorney; (2) no plausible, rational strategy or

 5 tactic explains counsel’s conduct; and (3) counsel’s apparent failings were prejudicial

 6 to the defense.” Id. To satisfy the prejudice prong, a defendant must show that there

 7 is a reasonable probability that the outcome of the proceeding would have been

 8 different “but for” the errors of counsel. State v. Hernandez, 1993-NMSC-007, ¶ 28,

 9 115 N.M. 6, 846 P.2d 312 (internal quotation marks and citation omitted). Deficient

10 performance is established when defense counsel’s “representation fell below an

11 objective standard of reasonableness.” State v. Roybal, 2002-NMSC-027, ¶ 21, 132

12 N.M. 657, 54 P.3d 61 (internal quotation marks and citation omitted). We review

13 counsel's performance in a “highly deferential” manner and “counsel is strongly

14 presumed to have rendered adequate assistance and made all significant decisions in

15 the exercise of reasonable professional judgment.” Lytle v. Jordan, 2001-NMSC-016,

16 ¶ 50, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted). We

17 will not second guess the trial tactics and strategies of counsel in reviewing a claim

18 of ineffective assistance of counsel. State v. Jacobs, 2000-NMSC-026, ¶ 49, 129 N.M.

19 448, 10 P.3d 127.


                                              9
 1   {12}   Defendant first contends that defense counsel was ineffective in failing to object

 2 to Victim’s testimony about the first three incidents of CSPM. Defendant contends

 3 that counsel’s failure to object to the testimony regarding the uncharged acts created

 4 a presumption of prejudice that Defendant’s counsel was ineffective based upon the

 5 likelihood that the jury rendered its verdict upon this testimony. Defendant fails to cite

 6 to any caselaw in support of this contention and provides us with little more than this

 7 mere assertion. Defendant’s belief that the jury inappropriately relied on this

 8 testimony in reaching its verdict is insufficient to establish a prima facie case of

 9 ineffective assistance of counsel. See State v. Jim, 2014-NMCA-___, ¶ 31, ___ P.3d

10 ___, (No. 31,008, April 3, 2014) (holding that the defendant failed to establish a prima

11 facie case of ineffective assistance where he failed in provide any argument in support

12 of his assertions). We have already determined that there was sufficient evidence to

13 support Defendant’s conviction, and we cannot conclude that the outcome of the trial

14 would have been different had counsel objected to the admission of Victim’s

15 testimony as to the uncharged acts. We cannot conclude, based on the record before

16 us, that there was no rational or plausible strategy or tactic to explain counsel’s

17 conduct. Accordingly, we determine that Defendant failed to establish a prima facie

18 case of ineffective assistance as to this claim on direct appeal.




                                                10
 1   {13}   Secondly, Defendant asserts that his trial counsel was ineffective in arguing

 2 credibility issues to the judge on the directed verdict motion, arguing “technical legal

 3 issues to the jury in closing argument,” and indicating agreement “with ‘a lot’ of what

 4 the prosecution argued in closing argument.” Regarding this aspect of his arguments,

 5 we note that Defendant provides no further argument or specific explanation related

 6 to the assertion that counsel presented improper arguments to the judge and jury. Such

 7 general arguments have been rejected by this Court as a basis to establish ineffective

 8 assistance. Id. Furthermore, our review of the record shows that defense counsel did

 9 not indicate agreement with the prosecutor as to the evidence presented, or as to

10 Defendant’s guilt as the brief in chief implies. Defense counsel stated that he agreed

11 with the prosecutor that “at this point in the trial, [the jury] probably already made

12 [its] mind up” and generally agreed with the prosecutor’s statement that the jurors had

13 a “very difficult decision” to make, but maintained clearly that the jury had a very

14 difficult decision to make given the testimony in the case. Without citing to any

15 caselaw in support of his contention and without providing any legal argument,

16 Defendant asserts that the “errors of counsel served no tactical or strategic purpose,

17 and fell below the standard of competent counsel, and prejudic[ing Defendant’s] right

18 to a fair trial.” This mere assertion is insufficient to establish a prima facie case of

19 ineffective assistance of counsel. Id. Because Defendant has failed to establish a prima


                                              11
 1 facie case on either of his claims, we deny his request for a new trial. See State v.

 2 Baca, 1997-NMSC-059, ¶¶ 30, 38, 124 N.M. 333, 950 P.2d 776 (denying the

 3 defendant a new trial on the basis that he failed to establish a prima facie case for

 4 ineffective assistance of counsel). We additionally deny his request for an evidentiary

 5 hearing on the same basis. See State v. Swavola, 1992-NMCA-089, ¶ 3, 114 N.M. 472,

 6 840 P.2d 1238 (“We . . . limit remand to those cases in which the record on appeal

 7 establishes a prima facie case of ineffective assistance.”). However, our conclusion

 8 that Defendant failed to establish a prima facie case of ineffective assistance “in no

 9 way impairs Defendant’s ability to later bring such a claim in a habeas proceeding.”

10 Bahney, 2012-NMCA-039, ¶ 53.

11 CONCLUSION

12   {14}   For the foregoing reasons, we affirm Defendant’s conviction.

13   {15}   IT IS SO ORDERED.




14                                         _________________________________
15                                         J. MILES HANISEE, Judge




                                             12
1 WE CONCUR:



2 _________________________________
3 MICHAEL E. VIGIL, Judge




4 _________________________________
5 LINDA M. VANZI, Judge




                                  13
