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

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                     NO. 27,015

 5 TIMOTHY THYBERG,

 6        Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Stephen Bridgforth, District Judge

 9 Gary K. King, Attorney General
10 Andrew S. Montgomery, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Law Offices of Nancy L. Simmons, P.C.
14 Nancy L. Simmons
15 Albuquerque, NM

16 for Appellant

17                              MEMORANDUM OPINION

18 KENNEDY, Judge.

19        Defendant was found guilty of attempted armed robbery, aggravated battery,

20 and concealing his identity for an incident in which he broke a beer bottle over the

21 head of pizza delivery man Marcus Riley. The State alleged that Defendant attempted

22 to take money from Riley while threatening him with the bottle. Riley did not turn
 1 over any money. Defendant appeals on two grounds: first, that his attorney was

 2 ineffective in not seeking to suppress the results of three show-up identifications; and

 3 second, that the district court improperly denied his motions for a directed verdict.

 4        We affirm Defendant’s convictions.

 5 FACTUAL BACKGROUND

 6        James Hasse and Frank Werner were waiting for a pizza in their apartment

 7 when they observed a stranger walking around in the courtyard outside. As Riley

 8 approached their apartment with the pizza, Hasse and Werner saw the stranger walk

 9 up behind Riley. Riley and the stranger briefly spoke and afterwards Riley delivered

10 the pizza to Hasse and Werner, who paid him. Hasse and Werner had not been more

11 than ten feet away when they saw the stranger in the courtyard, and the courtyard area

12 in which they saw him was well-illuminated. When Riley left, the unknown man

13 followed approximately five feet behind.

14        As Riley neared his vehicle, he was hit in the back of the head with a beer

15 bottle. The bottle broke and caused a gash behind his ear. Riley then turned and came

16 face to face with the stranger, who stood five to six feet away. The parking lot was

17 partially lit, though it was after dark. The man demanded Riley turn over all his

18 money, and Riley refused. The man persisted, and the encounter lasted a few more

19 minutes, until two young women broke up the confrontation. The women took the


                                              2
 1 man back to a truck and drove away. Riley drove back to the pizza store, where he

 2 reported the attack to the police, describing his assailant and the truck in which he

 3 fled. The police responded.

 4        The police broadcast the information, and they soon located a truck matching

 5 the one Riley described. Defendant was not in the truck, but Jarina Pena was, and she

 6 told police that the man they were searching for was currently at her apartment. She

 7 then directed police there.

 8        The police found Defendant lying on a bed at Pena’s apartment. He generally

 9 fit the witnesses’ description as to height, age, and build, and he wore a white t-shirt

10 identical to the one described by Hasse and Werner. Police also found a hat similar

11 to the one described by the witnesses on a dresser next to the bed on which Defendant

12 was lying. When confronted, Defendant refused to cooperate with the police and gave

13 an alias.1

14        Owing to the freshness of the crime, the police asked Riley if he could identify

15 Defendant in a one-on-one show-up identification. Riley did so and noted that

16 Defendant had changed his clothes. Riley also identified the two young women who

17 had driven away with Defendant. Hasse and Werner were also asked to participate in

18 show-up identifications. Hasse identified Defendant as the person he had seen and


          1
19         Defendant does not contest his conviction for concealing his identity.

                                              3
 1 also noted his change of clothes. Werner was less sure initially but became more

 2 positive when he saw Defendant’s ponytail.

 3        At trial, Riley identified Defendant as the man who attacked him. Hasse

 4 likewise identified Defendant without hesitation. Werner also identified Defendant,

 5 but explained that he was only ninety percent certain and attributed any remaining

 6 uncertainty to the passage of time prior to trial. A police officer identified Defendant

 7 as matching the descriptions taken from the three witnesses. The jury also heard a

 8 recorded statement made by Jessica Serna, one of the women who allegedly left with

 9 Defendant in the truck. In her statement, Serna confirmed Defendant as the person

10 who tried to rob Riley. Pena testified that Defendant, Serna, and another woman went

11 out together that evening in a truck matching the one Riley had seen. She also

12 indicated that Defendant had talked about his intention to get “some kind of money

13 or something.” The jury also considered evidence that the broken beer bottle

14 recovered from the scene was the same brand as a beer carton found in the truck.

15        Defendant made two motions for a directed verdict—one at the end of the

16 State’s case in chief and the other at the conclusion of all evidence. The district court

17 denied both, and the jury convicted Defendant of aggravated battery and attempted

18 armed robbery.

19 DISCUSSION


                                               4
 1        Defendant argues that he received ineffective assistance of counsel.

 2 Specifically, he claims that his attorney should have moved to suppress the statements

 3 of witnesses identifying him as the perpetrator. To prevail in this argument,

 4 Defendant must prove that his attorney’s actions at trial call “into doubt the reliability

 5 of the trial results.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 18, 130 N.M. 179,

 6 21 P.3d 1032 (internal quotation marks and citation omitted). Accordingly, we must

 7 analyze “whether the record supports [such a] motion” and whether “a reasonably

 8 competent attorney could have decided that a motion to suppress was unwarranted.”

 9 State v. Martinez, 1996-NMCA-109, ¶¶ 33, 36, 122 N.M. 476, 485, 927 P.2d 31

10 (internal quotation marks and citation omitted).          We begin with the general

11 presumption that counsel’s representation was effective. State v. Gonzales, 2007-

12 NMSC-059, ¶ 14, 143 N.M. 25, 172 P.3d 162.

13 The Record Does Not Support a Motion to Suppress

14        Patterson governs this case. In convictions involving show-up identifications,

15 we balance such an identification’s inherently suggestive nature against the presence

16 of any sufficient indica of reliability. Patterson, 2001-NMSC-013, ¶¶ 21-22. The

17 salient facts are not in dispute, but Defendant argues their legal effect.

18        In this case, a wealth of circumstantial and direct evidence establishes a strong

19 connection between Defendant and the crimes committed against Riley. Such


                                               5
 1 evidence, standing alone, supports Defendant’s conviction and renders an evaluation

 2 of the identifications unnecessary. Based on facts not disputed by either party, the

 3 police almost immediately found the truck described by witnesses, in which

 4 Defendant had left the scene. When located, Pena immediately told police to go to her

 5 apartment where they would find Defendant. She also testified that Defendant left her

 6 apartment with Serna, who neither party disputes broke up the confrontation, and that

 7 Defendant had mentioned his intention to get some money. There is no question that

 8 Defendant was the only male occupant of the truck leaving the incident. The broken

 9 beer bottle found at the scene matched the carton found in the truck. Furthermore,

10 Defendant was found on a bed next to a hat that had been described by eyewitnesses

11 as being worn by the assailant. Defendant gave false information concerning his

12 identity, and it is well-established that juries may consider such evidence in

13 determining a defendant’s guilt. State v. Martinez, 2002-NMCA-043, ¶ 17, 132 N.M.

14 101, 45 P.3d 41.

15        Turning to the show-up identifications themselves, Patterson enumerates

16 several factors that may be considered in weighing the inherently suggestive nature

17 of identifications against possible indicia of reliability in a particular case. Patterson,

18 2001-NMSC-013, ¶¶ 23-25; see Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977);

19 Neil v. Biggers, 409 U.S. 188, 198 (1972); State v. Maes, 100 N.M. 78, 82, 665 P.2d


                                                6
 1 1169, 1173 (Ct. App. 1983), abrogated on other grounds by Swafford v. State, 112

 2 N.M. 3, 810 P.2d 1223 (1991). As we stated above, each witness in this case had a

 3 good chance to view Defendant. Riley briefly spoke with Defendant prior to the

 4 attack. Hasse and Werner watched him walk around the courtyard for several minutes

 5 before Riley arrived and their attention was drawn by his odd behavior and the way

 6 in which he seemed out of place. The area was well-lit, and both Hasse and Werner

 7 said they each had an opportunity to see Defendant clearly. During the attack, Riley

 8 saw Defendant face to face at a distance of no more than six feet in a somewhat darker

 9 area. Hasse, Werner, and Riley each agreed on Defendant’s height and build in their

10 initial descriptions. They likewise agreed that he had a goatee and a ponytail. Hasse

11 and Werner had both described the hat found lying near Defendant when he was

12 apprehended. They also vaguely agreed that his age was in the range of late 20s to

13 early 30s. Defendant does not assert any great deviation between these descriptions

14 and himself. Defendant was apprehended within several minutes of the incident. As

15 each witness saw Defendant, each identified him, particularly Werner, who became

16 more certain when he saw Defendant’s ponytail. All of these factors weigh in favor

17 of a proper identification under Patterson.

18        Furthermore, the facts of this case are distinguishable from those in Patterson.

19 In Patterson, the identification of the defendant was fraught with problems, but here


                                              7
 1 the factors weigh heavily in favor of a reliable identification. Taking this evaluation

 2 into account, together with the other evidence against Defendant mentioned above, it

 3 is entirely conceivable that a reasonable attorney could choose to forego a motion to

 4 suppress the identifications. The standard we employ is “whether a reasonably

 5 competent attorney could have decided that a motion to suppress was unwarranted

 6 even though the facts might have supported it.” Patterson, 2001-NMSC-013, ¶ 27

 7 (emphasis added). In this case, a fair weight of other evidence circumstantially and

 8 otherwise placed Defendant at the scene of the assault on Riley. Thus, we cannot say

 9 that a motion to suppress the identifications was warranted. Defendant has failed to

10 establish that his attorney’s performance fell below an objective standard of

11 reasonableness, and without that, we cannot determine there was ineffective assistance

12 of counsel.

13 Defendant’s Motions for Directed Verdict Were Properly Denied

14        As our Supreme Court held in State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M.

15 821, 192 P.3d 1198,

16               Our review of the denial of a directed verdict motion asks whether
17        sufficient evidence was adduced to support the underlying charge. The
18        test for sufficiency of the evidence is whether substantial evidence of
19        either a direct or circumstantial nature exists to support a verdict of guilt
20        beyond a reasonable doubt with respect to every element essential to a
21        conviction. When considering the sufficiency of the evidence, this Court
22        does not evaluate the evidence to determine whether some hypothesis
23        could be designed which is consistent with a finding of innocence.

                                               8
 1        Instead, we view the evidence as a whole and indulge all reasonable
 2        inferences in favor of the jury’s verdict, while at the same time asking
 3        whether any rational trier of fact could have found the essential elements
 4        of the crime beyond a reasonable doubt[.]

 5 (alteration omitted) (internal quotation marks and citations omitted). In this case,

 6 Riley testified that Defendant broke a bottle over his head and then used the broken

 7 bottle to demand money from him. Several witnesses directly identified Defendant

 8 as the perpetrator.    Likewise, a variety of evidence, as discussed above, also

 9 implicated Defendant as Riley’s assailant. Applying the standard announced in Sena,

10 we cannot conclude that the district court improperly denied Defendant’s motions.

11 We affirm in all respects.

12        IT IS SO ORDERED.

13                                         ___________________________________
14                                         RODERICK T. KENNEDY, Judge

15 WE CONCUR:



16 ___________________________
17 JONATHAN B. SUTIN, Judge



18 ___________________________
19 TIMOTHY L. GARCIA, Judge




                                              9
