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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.                                                                                   NOS. 33,074
 5                                                                                      & 33,039
 6 TRAVIS CLAYTON,                                                                      (consolidated)

 7          Defendant-Appellant.

 8 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 9 Lisa B. Riley, District Judge

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

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 Karl Erich Martell, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VIGIL, Judge.
 1   {1}   Defendant Travis Clayton appeals his conviction following a jury trial. This

 2 Court issued a notice of proposed summary disposition, proposing to affirm. Clayton

 3 has filed a memorandum in opposition, which we have duly considered. As we are

 4 unpersuaded by Clayton’s arguments, we affirm.

 5   {2}   In our notice of proposed summary disposition, we noted that the record in this

 6 case suggested the introduction of relevant evidence not addressed in Clayton’s

 7 docketing statement. See Rule 12-208(D)(3) (requiring that a docketing statement

 8 summarize “all facts material to a consideration of the issues presented”). In Clayton’s

 9 memorandum in opposition, he continues to argue, pursuant to State v. Franklin,

10 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029,

11 103 N.M. 655, 712 P.2d 1, that the evidence was insufficient to support his felony

12 conviction. That memorandum, however, contains no further description of the

13 evidence offered at trial and does not alter this Court’s view that—viewed in the light

14 most favorable to the verdict and drawing all reasonable inferences therefrom—there

15 was sufficient evidence to support Clayton’s conviction beyond a reasonable doubt.

16 See State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176 (“In

17 reviewing the sufficiency of the evidence, we must view the evidence in the light most

18 favorable to the guilty verdict, indulging all reasonable inferences and resolving all

19 conflicts in the evidence in favor of the verdict.”). To the extent that Clayton also


                                              2
 1 asserts that victim-testimony offered at trial was untrustworthy, we note that it is not

 2 the function of this Court to reassess the credibility determinations made by the trier

 3 of fact. See State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482

 4 (deferring to district court “when it weighs the credibility of witnesses”).

 5   {3}   Clayton’s memorandum in opposition also continues to argue—again relying

 6 upon Franklin and Boyer—that he was denied effective assistance of counsel at trial

 7 by his attorney’s failure to request a lesser-included jury instruction. As our notice of

 8 proposed summary disposition acknowledged, where a lesser-included instruction

 9 would be supported by the evidence, a defendant is entitled to such an instruction, but

10 that the decision whether or not to request one is generally a matter of trial strategy.

11 As pointed out in our notice of proposed summary disposition and acknowledged in

12 Clayton’s memorandum in opposition, this issue was not developed below and is thus

13 not preserved for appeal. Thus, Clayton now asks that we remand to the district court

14 for an evidentiary hearing on this issue. We are unpersuaded, however, that such a

15 course of action would be in any way preferable to the procedure outlined in Rule 5-

16 802 NMRA. See State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d

17 31 (expressing a “preference for habeas corpus proceedings over remand when the

18 record on appeal does not establish a prima facie case of ineffective assistance of

19 counsel”). If Clayton believes he can demonstrate ineffectiveness if given the


                                               3
 1 opportunity to present evidence at a hearing, he remains free to do so pursuant to that

 2 rule.

 3   {4}    Clayton’s memorandum in opposition does not provide new facts or authorities

 4 that persuade us that our proposed summary disposition was in error. “Our courts have

 5 repeatedly held that, in summary calendar cases, the burden is on the party opposing

 6 the proposed disposition to clearly point out errors in fact or law.” Hennessy v.

 7 Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683. Clayton has failed to

 8 do so.

 9   {5}    Thus, for the reasons stated here and in our notice of proposed summary

10 disposition, we affirm.

11   {6}    IT IS SO ORDERED.


12                                         __________________________________
13                                         MICHAEL E. VIGIL, Judge

14 WE CONCUR:



15 ___________________________________
16 JAMES J. WECHSLER, Judge



17 ___________________________________
18 MICHAEL D. BUSTAMANTE, Judge


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