     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     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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. 31,486

 5 JEFFREY SWART,

 6          Defendant-Appellant.

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

 9 Gary K. King, Attorney General
10 Olga Serafimova, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender
14 Allison H. Jaramillo, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant
 1                             MEMORANDUM OPINION

 2 ZAMORA, Judge.

 3   {1}   Defendant appeals his conviction of two counts of false imprisonment and one

 4 count of battery stemming from a confrontation with two individuals attempting to

 5 repossess his vehicle. We affirm.

 6 BACKGROUND

 7   {2}   The charges arose out of Defendant’s confrontation with Clinton and Lindi

 8 Ishmael (Victims) who had entered Defendant’s property to repossess a vehicle.

 9 Defendant locked the gates to his property and moved another vehicle in front of

10 Victims’ tow truck, thereby preventing them from leaving. Defendant testified he

11 believed he had the authority to detain Victims until law enforcement arrived because

12 Mr. Ishmael had backed his tow truck into Defendant and Mr. Ishmael threw pea

13 gravel at Defendant’s head. Victims deny that they backed the tow truck into

14 Defendant or threw gravel at him.

15   {3}   A jury convicted Defendant of two counts of false imprisonment and one count

16 of battery. Defendant raises five issues on appeal: (1) whether the district court erred

17 in not submitting a mistake-of-fact instruction to the jury and in submitting a general

18 intent instruction; (2) whether the evidence was sufficient to find Defendant guilty of

19 false imprisonment; (3) whether the evidence was sufficient to find Defendant guilty
 1 of battery; (4) whether the court committed fundamental error when it failed to

 2 instruct the jury on citizen’s arrest; and (5) whether Defendant received ineffective

 3 assistance of counsel when his attorney failed to request a citizen’s arrest instruction

 4 and failed to adequately investigate the case and interview witnesses prior to trial. We

 5 address each argument in turn.

 6 DISCUSSION

 7 Issue 1: Jury Instructions on Mistake-of-Fact, General Intent

 8   {4}   Defendant argues that the district court erred in denying his request for a jury

 9 instruction on mistake-of-fact. He also contends that the district court further erred

10 by including false imprisonment as one of the crimes covered by the general intent

11 instruction.

12 A.      Mistake-of-Fact Instruction

13   {5}   We must first address the State’s argument that Defendant failed to preserve

14 this issue for appeal. Although Defendant requested the jury instruction, it was not

15 in the record. “The primary purpose of any objection to an instruction is, of course,

16 to alert the mind of the judge to the claimed error contained in it, to the end that he

17 may correct it.” State v. Compton, 57 N.M. 227, 236, 257 P.2d 915, 921 (1953).

18 Consequently, “[t]imely objections to improper instructions must be made or error,


                                               2
 1 if any, will be regarded as waived in every case.” State v. Garcia, 46 N.M. 302, 307,

 2 128 P.2d 459, 462 (1942); see also State v. Cunningham, 2000-NMSC-009, ¶ 11, 128

 3 N.M. 711, 998 P.2d 176 (“By not invoking the [district] court’s discretion with regard

 4 to the propriety of the jury instructions, [the defendant] effectively waived appellate

 5 review of this issue.”).

 6   {6}   Defendant’s counsel argued for the mistake-of-fact instruction based on the

 7 theory that Defendant believed he had the authority to restrain or confine Victims

 8 because he thought a battery had been committed against him and that he was

 9 mistaken over the fact of whether he had authority to restrain Victims until police

10 arrived. The State argued that any such mistaken belief is covered by an element of

11 the jury instruction for false imprisonment. The district court responded: “Let’s do

12 it that way. Let’s look at the elements of false imprisonment and see where we are.”

13 He then read the following jury instructions for both victims, which eventually were

14 submitted to the jury, for both counts of false imprisonment.

15                For you to find [D]efendant guilty of false imprisonment as
16         charged in Count 1, the [S]tate must prove to your satisfaction beyond
17         a reasonable doubt each of the following elements of the crime:

18         1.    [D]efendant restrained or confined Clinton Ishmael (Lindi
19               Ishmael) against his (her) will;



                                              3
 1         2.    [D]efendant knew that he had no authority to restrain or confine
 2               Clinton Ishmael (Lindi Ishmael);

 3         3.    This happened in New Mexico on or about the 14th day of
 4               January[] 2010.

 5   {7}   After pointing out that the second element sufficed in addressing Defendant’s

 6 mistake-of-fact concerns, the following exchange took place between the district court

 7 and defense counsel:

 8         Judge: So I think the State [to prove false imprisonment] has to prove
 9         that he had no authority. So I think that would allow you to argue that
10         he had authority.

11         Defense counsel: Okay, I agree.

12         Judge: I’m going to leave it the way it is.

13         Defense counsel: I think I can argue it both ways.

14         Judge: I’ll allow you to argue that he thought he could restrain them
15         because—

16         Defense counsel: I just like one better.

17         Judge: Yeah. I’ll let you argue it. . . . I think [the false imprisonment
18         instruction is] a good instruction.

19   {8}   Thus, Defendant’s counsel agreed with the court that the false imprisonment

20 instruction sufficiently addressed the question of whether Defendant had the authority

21 to detain Victims and that the mistake-of-fact instruction was not needed. In the case


                                              4
 1 before us, rather than object, defense counsel agreed when the judge rejected the

 2 mistake-of-fact instruction as cumulative. We conclude that Defendant has waived

 3 any appellate review of the question of whether the district court erred by not

 4 submitting a mistake-of-fact instruction to the jury.

 5 B.      General Intent Instruction

 6   {9}   We note that there is no indication in the record to show that Defendant made

 7 this argument to the district court. Such a lack of preservation dictates the standard

 8 of review we employ.

 9                The standard of review we apply to jury instructions depends on
10         whether the issue has been preserved. If the error has been preserved we
11         review the instructions for reversible error. If not, we review for
12         fundamental error. Under both standards we seek to determine whether
13         a reasonable juror would have been confused or misdirected by the jury
14         instruction.

15 State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (internal

16 quotation marks and citations omitted). “[I]nstructions must be considered as a whole,

17 and not singly[.]” State v. Parish, 118 N.M. 39, 41, 878 P.2d 988, 990 (1994)

18 (internal quotation marks and citation omitted). The doctrine of fundamental error

19 exists only “for the protection of those whose innocence appears indisputabl[e], or

20 open to such question that it would shock the conscience to permit the conviction to

21 stand.” Cunningham, 2000-NMSC-009, ¶ 13 (internal quotation marks and citation

                                              5
 1 omitted). We will reverse for fundamental error when the foundation or basis of a

 2 defendant’s case or an essential right in a defense is affected. Id.

 3   {10}   Here, Defendant’s innocence does not appear indisputable; nor would his

 4 conviction shock the conscience of the court or represent a “miscarriage of justice.”

 5 State v. Maestas, 2007-NMSC-001, ¶ 8, 140 N.M. 836, 149 P.3d 933. Defendant was

 6 permitted at trial to argue his theory that he thought he had the authority to detain

 7 Victims, and the burden was on the State to prove that Defendant did not have such

 8 authority. The jury heard both arguments and chose to reject Defendant’s version of

 9 events. We find that there was no fundamental error.

10   {11}   This Court has also been asked to determine whether a reasonable juror would

11 have found the general intent instruction along with the two false imprisonment

12 instructions contradictory and confusing. In addition to the instruction on false

13 imprisonment, the district court submitted the following general intent instruction to

14 the jury:

15                In addition to the other elements of false imprisonment (2 counts)
16          and battery, the [S]tate must prove to your satisfaction beyond a
17          reasonable doubt that . . . [D]efendant acted intentionally when he
18          committed the crime. A person acts intentionally when he purposely
19          does an act which the law declares to be a crime, even though he may not
20          know that his act is unlawful. Whether [D]efendant acted intentionally
21          may be inferred from all of the surrounding circumstances, such as the


                                               6
 1          manner in which he acts, the means used, his conduct[,] and any
 2          statements made by him.

 3   {12}   False imprisonment is the intentional confining or restraining of another

 4 without that person’s consent and with the knowledge on the part of the one

 5 restraining that he or she has no authority to confine or restrain. See NMSA 1978, §

 6 30-4-3 (1963). The general intent instruction submitted to the jury properly conveys

 7 the requirement of an intentional act and comported with UJI 14-141 NMRA. The

 8 first use note for that instruction states: “This instruction must be used with every

 9 crime except for the relatively few crimes not requiring criminal intent or those crimes

10 in which the intent is specified in the statute or instruction.” Id.

11   {13}   Jurors were instructed on the elements of false imprisonment and were further

12 instructed that they were required to find that Defendant acted intentionally. The

13 general intent instruction stated at the outset that the jury had to find that Defendant

14 had to have acted intentionally “[i]n addition to the other elements of false

15 imprisonment[.]”

16   {14}   We reject Defendant’s position that the general intent instruction was

17 inconsistent with the false imprisonment instructions. There is no rational basis to the

18 argument that the combination of the false imprisonment instructions and the general

19 intent instruction would create confusion for a reasonable juror, and there is no

                                               7
 1 evidence of jury confusion here resulting from what were, in fact, complementary

 2 instructions.

 3 Issues 2 and 3: Sufficiency of the Evidence to Convict for False Imprisonment
 4 and Battery

 5 A.       False Imprisonment

 6   {15}   One of the issues before the jury was whether Defendant acted with knowledge

 7 that he did not have lawful authority to detain Victims. Whether there is sufficient

 8 evidence to support a conviction is a question of law that we review de novo. State

 9 v. Neatherlin, 2007-NMCA-035, ¶ 8, 141 N.M. 328, 154 P.3d 703. “We must

10 determine [whether] substantial evidence exists to support a verdict of guilt beyond

11 a reasonable doubt with respect to each element necessary for conviction.” Id. “In

12 reviewing the sufficiency of the evidence, [the appellate courts] must view the

13 evidence in the light most favorable to the guilty verdict, indulging all reasonable

14 inferences and resolving all conflicts in the evidence in favor of the verdict.”

15 Cunningham, 2000-NMSC-009, ¶ 26. Both direct and circumstantial evidence may

16 be considered when determining whether there is substantial evidence to establish an

17 element of a particular crime. State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606,

18 145 P.3d 86. In so doing, the appellate courts do not reweigh the evidence or

19 substitute our judgment for that of the jury. State v. Treadway, 2006-NMSC-008, ¶

                                              8
 1 7, 139 N.M. 167, 130 P.3d 746. “Substantial evidence is relevant evidence that a

 2 reasonable mind might accept as adequate to support a conclusion.” State v. Rojo,

 3 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829.

 4   {16}   Under the facts of this case, the State had to prove beyond a reasonable doubt

 5 that Defendant restrained or confined Victims against their wills; that Defendant knew

 6 that he had no authority to restrain or confine Victims; and that it happened in New

 7 Mexico on or about the 14th day of January, 2010. See UJI 14-401 NMRA. Sheriff’s

 8 Deputy Floyd Foutz and Defendant both testified that Defendant acknowledged and

 9 admitted that he confined Victims within his property. There was no dispute on the

10 date of the incident. Victims affirmed that Defendant had closed and locked the gate,

11 which prevented them from leaving. We conclude that substantial evidence supported

12 the element of restraining or confining Victims against their wills.

13   {17}   As to the second element of false imprisonment, Defendant asserted that he

14 believed he had authority to restrain or confine Victims. There was conflicting

15 testimony about the attempted repossession presented at trial. Defendant contended

16 that Victims did not have the paperwork to justify the repossession of his vehicle; that

17 Victims were trespassing; and that he had been assaulted twice when Mr. Ishmael

18 threw pea gravel at him and when Mr. Ishmael hit Defendant with the tow lift of his


                                               9
 1 truck. Victims contended that they provided the pertinent paperwork to Defendant’s

 2 wife, who in turn provided it to Defendant. According to Victims, Defendant

 3 crumpled it as he walked back to his house, then took the papers in the house with the

 4 can of pepper spray. A title loan company representative brought over additional

 5 copies of the paperwork. Victims also claim that they entered the property through

 6 an unlocked open gate. There was also testimony that Defendant was irate and yelling

 7 during the altercation. Defendant pepper sprayed Mr. Ishmael two times.

 8   {18}   Deputy Foutz found inconsistencies with Defendant’s account of what

 9 happened during the repossession of his vehicle and stated that the evidence found at

10 the scene did not corroborate Defendant’s version of the story. Deputy Foutz did not

11 charge Victims with any crimes. There were also credibility issues raised regarding

12 Defendant’s account that Mr. Ishmael had a 14- to 16-inch pipe in his tow truck with

13 which he threatened Defendant; which gate Victims drove through; whether Victims

14 broke the lock on the gate; whether Defendant’s wife was shoved; and whether

15 Defendant’s wife’s coat was thrown to the ground.           The car was ultimately

16 repossessed.

17   {19}   Consequently, in reaching its verdict, the jury was required to evaluate the

18 credibility of each witness, determine the weight given to each witness’s testimony,


                                             10
 1 consider the admitted exhibits, and reach its verdict accordingly. The jury had

 2 sufficient basis on which to infer that Defendant knew he did not have authority to

 3 detain Victims. We therefore conclude that there was sufficient evidence to support

 4 Defendant’s convictions for false imprisonment.

 5 B.       Battery

 6   {20}   Defendant argues that he acted in self-defense and that the State failed to

 7 present sufficient evidence to support a battery conviction. Defendant then proceeds

 8 to direct this Court’s attention to State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M.

 9 686, 986 P.2d 482, which discusses the fact-finder’s role in considering the testimony

10 of the witnesses.

11   {21}   The third element of the jury instruction on battery required that the jury find

12 beyond a reasonable doubt that Defendant did not act in self-defense. Defendant

13 asserted that he was acting in self-defense when he pepper-sprayed Victim because

14 Victim was threatening him with a pipe. Defendant’s self-defense argument was

15 considered by the jury by virtue of this instruction. The district court noted that

16 Defendant’s self-defense argument was considered by the jury in the battery

17 instruction. Defense counsel did not object or otherwise comment on the court’s




                                               11
 1 point. We conclude that there was sufficient evidence to support Defendant’s

 2 conviction for battery.

 3 Issue 4: Jury Instruction on Citizen’s Arrest

 4   {22}   Defendant contends that even though he did not offer a jury instruction on

 5 citizen’s arrest, it was the district court’s responsibility to ensure that the jury was

 6 properly instructed on the essential elements of the crime. Defendant argued that he

 7 had the right to detain Victims until police arrived, because he believed a crime had

 8 been committed against him. Based on this belief, Defendant argues that the district

 9 court, sua sponte, should have given an instruction on citizen’s arrest to the jury.

10   {23}   This argument returns us to the jury instructions on false imprisonment,

11 covering both Victims, particularly the second element: that Defendant knew he had

12 no authority to restrain or confine Victims. The State had the burden of proving,

13 beyond a reasonable doubt, that Defendant did not know he had such authority.

14 Defendant’s argument to the jury would have been that he had the authority to detain

15 Victims until law enforcement arrived because he believed a crime had been

16 committed against him. The jury would then decide which version to believe. Thus,

17 a citizen’s arrest instruction would have been cumulative of the false imprisonment

18 instruction.


                                              12
 1   {24}   “The [district] court need not . . . offer duplicate instructions if the instructions

 2 given adequately apprise the jury of the controlling law.” State v. Bunce, 116 N.M.

 3 284, 287, 861 P.2d 965, 968 (1993); see State v. Nozie, 2007-NMCA-131, ¶ 11, 142

 4 N.M. 626, 168 P.3d 756.

 5 Issue 5: Ineffective Assistance of Counsel

 6 A.       Defense Counsel’s Failure to Request a Citizen’s Arrest Jury Instruction

 7   {25}   Defendant argues that he was provided ineffective assistance of counsel when

 8 his attorney failed to request a citizen’s arrest instruction, as that was clearly his

 9 defense. Moreover, Defendant contends that if the jury had believed his claim, the

10 jury would have been instructed to find him not guilty.

11   {26}   Defendant must show that counsel’s performance fell below that of a reasonably

12 competent attorney and that Defendant was prejudiced by the deficient performance.

13 State v. Nguyen, 2008-NMCA-073, ¶ 28, 144 N.M. 197, 185 P.3d 368. The burden

14 of proof is on Defendant to prove both prongs. Id. Counsel is presumed competent.

15 State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. A remand for

16 an evidentiary hearing is appropriate only when the record on appeal establishes a

17 prima facie case of ineffective assistance of counsel. State v. Arrendondo, 2012-

18 NMSC-013, ¶ 38, 278 P.3d 517. “A prima facie case is made out when: (1) it appears


                                                 13
 1 from the record that counsel acted unreasonably; (2) the appellate court cannot think

 2 of a plausible, rational strategy or tactic to explain counsel’s conduct; and (3) the

 3 actions of counsel are prejudicial.” State ex rel. Children, Youth & Families Dep’t v.

 4 David F., 1996-NMCA-018, ¶ 20, 121 N.M. 341, 911 P.2d 235. “Without such prima

 5 facie evidence, the Court presumes that defense counsel’s performance fell within the

 6 range of reasonable representation.” Arrendondo, 2012-NMSC-013, ¶ 38.

 7   {27}   This matter goes back to our discussion in Issue 4 and relating to the district

 8 court’s failure, sua sponte, to instruct the jury on citizen’s arrest. Without reiterating

 9 the discussion, such an instruction would have been cumulative of the false

10 imprisonment instructions. Therefore, we cannot conclude that defense counsel acted

11 unreasonably. The failure to request a citizen’s arrest jury instruction did not rise to

12 the level of ineffective assistance of counsel.




13 B.       Trial Attorney’s Failure to Adequately Prepare for Trial




                                               14
 1   {28}   Defendant also argues that his trial counsel failed to adequately prepare for trial

 2 by failing to interview necessary witnesses before trial. Defendant also recognizes

 3 that there is nothing in the record to substantiate his claim.

 4   {29}   “When an ineffective assistance claim is first raised on direct appeal, we

 5 evaluate the facts that are part of the record. If facts necessary to a full determination

 6 are not part of the record, an ineffective assistance claim is more properly brought

 7 through a habeas corpus petition[.]” State v. Roybal, 2002-NMSC-027, ¶ 19, 132

 8 N.M. 657, 54 P.3d 61; see also Arrendondo, 2012-NMSC-013, ¶ 38 (“The record is

 9 frequently insufficient to establish whether an action taken by defense counsel was

10 reasonable or if it caused prejudice. Thus, instead of remanding the matter to the

11 [district] court, [the Supreme Court] prefers that these claims be brought under habeas

12 corpus proceedings so that the defendant may actually develop the record with respect

13 to defense counsel’s actions.” (citation omitted)).

14   {30}   In the case before us, it would be more appropriate for Defendant to raise his

15 claim of ineffective assistance of counsel for failure to interview particular witnesses

16 prior to trial through a writ of habeas corpus.



17 CONCLUSION


                                                15
1   {31}   For the foregoing reasons, we affirm Defendant’s convictions.

2          IT IS SO ORDERED.



3                                                ___________________________
4                                                M. MONICA ZAMORA, Judge




5 ________________________________
6 MICHAEL D. BUSTAMANTE, Judge




7 ________________________________
8 JONATHAN B. SUTIN, Judge




                                            16
