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


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                     NO. 28,793

 5 ROBERT SANCHEZ,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 William G. Shoobridge, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Nancy M. Hewitt, Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                             MEMORANDUM OPINION

17 CASTILLO, Judge.

18       Defendant appeals from his conviction for criminal sexual contact of a minor.

19 In this Court’s notice of proposed summary disposition, we proposed to affirm.
 1 Defendant has responded with a memorandum in opposition, pursuant to an extension

 2 of time granted by this Court. We have reviewed Defendant’s arguments, which are

 3 set forth in accordance with State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and

 4 State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985). Because we are not

 5 persuaded by them, we now affirm.

 6 Sufficiency of the Evidence

 7        Defendant asserts that there was insufficient evidence to support his conviction

 8 for criminal sexual contact of a minor under thirteen. [DS 5] In particular, Defendant

 9 claims that there was insufficient evidence that when he touched the child he had any

10 intent to arouse or gratify sexual desire. [DS 3, 5; RP 119]

11        In this case, the evidence indicating that Defendant touched his six-year-old

12 stepson with the intent to arouse or gratify sexual desire was circumstantial. [DS 2-5]

13 But intent is often proved by circumstantial evidence. See State v. Caldwell,

14 2008-NMCA-049, ¶ 34, 143 N.M. 792, 182 P.3d 775 (“Like knowledge, a defendant’s

15 intent is rarely subject to direct proof and may be proved by circumstantial

16 evidence.”), cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180. And

17 “[t]he test for sufficiency of the evidence is whether substantial evidence of either a

18 direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable

19 doubt.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (emphasis


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 1 added) (internal quotation marks and citation omitted). This Court “must view the

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

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

 4 State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Viewing

 5 the facts in this light, we believe a reasonable jury could have found beyond a

 6 reasonable doubt that when Defendant touched the child, he did so with the intent to

 7 arouse or gratify sexual desire.

 8        At trial, Defendant’s stepson testified that he was taking a bath when Defendant

 9 came into the bathroom, asked him to stand up, and then touched his penis and

10 backside. [DS 2; MIO 1] The child later told his mother, who confronted Defendant.

11 [DS 2; MIO 1] Defendant apparently said that he believed that the child had a

12 propensity for inappropriate sexual behavior and that he was trying to prevent possible

13 future problems by determining whether the child had an erection. [DS 2; MIO 1] At

14 trial, Defendant’s wife testified that Defendant would have had to feel the child’s

15 penis in order to determine if he had an erection, since the child generally bathed in

16 his underwear. [DS 2-3; MIO 1-2] However, the evidence that the child was wearing

17 underwear while bathing was apparently controverted by other testimony. [DS 2]

18        Viewing this evidence in the light most favorable to the verdict, we hold that

19 there was sufficient evidence from which a reasonable jury could conclude beyond a


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 1 reasonable doubt that Defendant’s intent was sexual. Although there was evidence

 2 that Defendant touched the child for what he may have believed to be legitimate

 3 parenting reasons, the jury was not required to credit this testimony. See State v. Rojo,

 4 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting

 5 acquittal does not provide a basis for reversal because the jury is free to reject the

 6 [d]efendant’s version of the facts.”).      The jury was free to find Defendant’s

 7 explanation to his wife implausible, and the fact that the child testified that Defendant

 8 also touched his backside provides a sufficient basis for the conclusion that Defendant

 9 was not just attempting to determine whether the child had an erection. We do not

10 believe that our review of the sufficiency of the evidence in this case employs the kind

11 of improper speculation disapproved of in State v. Mariano R., 1997-NMCA-018, ¶

12 7, 123 N.M. 121, 934 P.2d 315. Accordingly, we hold that there was substantial

13 evidence to support an inference that Defendant’s conduct in touching the child was

14 unlawful.

15 Ineffective Assistance of Counsel

16        Defendant argues that his counsel was ineffective for failing to produce the

17 preliminary hearing transcript in order to prove that the child had not previously

18 alleged that Defendant touched his backside, for failing to use words such as “alleged”

19 and “accused” during his opening statement, for failing to introduce witnesses to rebut


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 1 certain evidence and to show that the child had been inappropriately coached to

 2 testify, and for failing to act in Defendant’s best interest during sentencing. [DS 4-5]

 3        In order to establish a prima facie claim for ineffective assistance of counsel,

 4 a defendant must prove that his counsel has been ineffective and that he has been

 5 prejudiced by his counsel’s errors. See State v. Grogan, 2007-NMSC-039, ¶ 11, 142

 6 N.M. 107, 163 P.3d 494. “If any claimed error can be justified as a trial tactic or

 7 strategy, then the error will not be unreasonable.” State v. Bernal, 2006-NMSC-050,

 8 ¶ 32, 140 N.M. 644, 146 P.3d 289. In order to prove prejudice, Defendant must show

 9 “a reasonable probability that, but for counsel’s unprofessional errors, the result of the

10 proceeding would have been different.” Id. (internal quotation marks and citation

11 omitted). When “the record on appeal does not provide enough information to

12 adequately determine whether an action was error or caused prejudice[,] further

13 evidence is often required.” Id. ¶ 33. “Rather than remand the case to the trial court

14 for further hearings, this Court has a general preference that such claims be brought

15 and resolved through habeas corpus proceedings.” Id.

16        Here, on the appellate record before us, we find that Defendant has not

17 established either unreasonable errors by his counsel or that he was prejudiced by any

18 claimed error. Accordingly, we hold that Defendant has not established a prima facie

19 case of ineffective assistance of counsel.


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1       Therefore, for the reasons stated in this opinion and in this Court’s notice of

2 proposed summary disposition, we affirm.

3       IT IS SO ORDERED.



4                                              ________________________________
5                                              CELIA FOY CASTILLO, Judge

6 WE CONCUR:



7 ________________________________
8 CYNTHIA A. FRY, Chief Judge



 9 ________________________________
10 TIMOTHY L. GARCIA, Judge




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