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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. 35,945

 5 DANIEL FUENTES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 James M. Hudson, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 GARCIA, Judge.

18   {1}    Defendant Daniel Fuentes appeals from his jury trial convictions for trafficking

19 by distribution and conspiracy to commit trafficking. [DS 2; RP 133, 139] This Court
 1 issued a notice proposing to affirm. Defendant filed a memorandum in opposition,

 2 which we have duly considered. Remaining unpersuaded, we affirm.

 3   {2}   Defendant raises two issues on appeal: (1) whether the evidence was sufficient

 4 to support Defendant’s convictions, and (2) whether Defendant received ineffective

 5 assistance of counsel when trial counsel stipulated to the admission of the results of

 6 the controlled substance testing. [DS 4]

 7   {3}   In his memorandum in opposition, Defendant continues to argue his convictions

 8 were not supported by sufficient evidence because the State failed to present any

 9 direct evidence Defendant knowingly distributed drugs or conspired to do so. [MIO

10 4-5] As we pointed out in our notice of proposed disposition, circumstantial evidence

11 is substantial evidence. See State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056.

12 [CN 4] “A party responding to a summary calendar notice must come forward and

13 specifically point out errors of law and fact[,]” and the repetition of earlier arguments

14 does not fulfill this requirement. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107

15 N.M. 421, 759 P.2d 1003, superseded by statute as stated in State v. Harris, 2013-

16 NMCA-031, 927 P.3d 374. Because Defendant has not pointed out any errors in the

17 notice of proposed disposition, we hold his convictions were supported by sufficient

18 evidence.

19   {4}   Defendant next continues to argue he received ineffective assistance of counsel


                                               2
 1 because trial counsel stipulated to admission of the drug test results, rather than

 2 requiring the State to admit the results through the analyst who conducted the testing.

 3 [MIO 7–8] Defendant admits trial counsel’s stipulation to the admission of evidence

 4 was a strategic decision, but the decision removed the determination of the identity of

 5 the substance from the jury’s consideration. [MIO 8] Thus, Defendant argues, the

 6 stipulation undermined the outcome of his trial. [MIO 9]

 7   {5}   As we noted in our proposed disposition, “[o]n appeal, we will not second guess

 8 the trial strategy and tactics of the defense counsel.” Lytle v. Jordan, 2001-NMSC-

 9 016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted).

10 Aside from his assertion trial counsel’s strategy was unreasonable, [MIO 8] Defendant

11 fails to demonstrate how the stipulation to admission of evidence fell below an

12 objective standard of reasonableness or how the outcome of his trial would have been

13 different had the evidence been admitted through the analyst who tested the drugs. See

14 State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (setting forth the

15 requirements to establish a prima facie case of ineffective assistance of counsel).

16 Moreover, our Supreme Court has expressed a preference that ineffective assistance

17 of counsel claims be adjudicated in habeas corpus proceedings, rather than on direct

18 appeal. Duncan v. Kerby, 1993-NMSC-011, ¶ 4, 115 N.M. 344, 851 P.2d 466. We

19 therefore hold Defendant has not demonstrated he received ineffective assistance of


                                              3
1 counsel, based on the record before us.

2   {6}   Accordingly, based on the reasons explained above and in this Court’s notice

3 of proposed disposition, we affirm.

4   {7}   IT IS SO ORDERED.

5                                               ________________________________
6                                               TIMOTHY L. GARCIA, Judge

7 WE CONCUR:


8 _______________________________
9 MICHAEL E. VIGIL, Judge


10 _______________________________
11 JULIE J. VARGAS, Judge




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