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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. 34,571

 5 ALIVIA GARCIA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Judith K. Nakamura, District Judge

 9   Hector H. Balderas, Attorney General
10   Santa Fe, NM
11   John Kloss, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Bennett J. Baur, Chief Public Defender
15   Santa Fe, NM
16   Steven J. Forsberg, Assistant Appellate Defender
17   Albuquerque, NM

18 for Appellant

19                                 MEMORANDUM OPINION

20 ZAMORA, Judge.
 1   {1}   Defendant Alivia Garcia was convicted by a jury in metropolitan court for

 2 aggravated driving under the influence of intoxicating liquor or drugs (aggravated

 3 DWI), contrary to NMSA 1978, Section 66-8-102(D)(3) (2010, amended 2016) and

 4 careless driving, contrary to NMSA 1978, Section 66-8-114 (1978). Defendant

 5 appealed those convictions to the district court and raised two issues: (1) whether the

 6 trial court abused its discretion when it denied Defendant’s motion for directed verdict

 7 where the State offered no evidence that the test Defendant refused to take had

 8 complied with statewide regulations; and, (2) whether the trial court abused its

 9 discretion by denying her requested jury instruction, pursuant to State v. Ware, based

10 on three seconds missing from the officer’s lapel camera video. 1994-NMSC-091, 118

11 N.M. 319, 881 P.2d 679. The district court issued a memorandum opinion affirming

12 Defendant’s convictions. Defendant raises these same issues on appeal to this Court

13 as well as a claim of ineffective assistance of counsel. We affirm Defendant’s

14 convictions.

15 I.      BACKGROUND

16   {2}   On the evening of November 28, 2013, the Albuquerque Police Department

17 (APD) set up a sobriety checkpoint in Albuquerque, New Mexico. The officers

18 conducting the checkpoint were instructed to make contact with every vehicle and

19 identify themselves. After doing so, the officers were to then determine whether the



                                              2
 1 driver exhibited any signs of intoxication such as bloodshot watery eyes, slurred

 2 speech, or a strong odor of alcohol that would give rise to a reasonable suspicion that

 3 the driver was under the influence of alcohol. Should any such reasonable suspicion

 4 exist, the officer were instructed to have the driver exit the vehicle, engage their lapel

 5 cameras, and continue with a DWI investigation. The standard operating procedure

 6 for lapel cameras was that every interaction that an officer had with an individual was

 7 required to be recorded. Because of the length of the checkpoint operation and the

 8 camera’s limited memory card and battery power, the practice at the checkpoint on

 9 November 28 was to record only those interactions, which continued past the initial

10 contact, and in which reasonable suspicion arose and gave rise to a continued

11 investigation.

12   {3}   Sergeant Zach Cottrell, acting as a safety vehicle at the checkpoint that evening,

13 was in charge of ensuring that the vehicles entering the checkpoint proceeded at a safe

14 speed, as well as stopping any vehicles that attempted to avoid entering the

15 checkpoint. Sergeant Cottrell parked in a lot near the entrance to the checkpoint. He

16 was sitting in his vehicle when he observed a truck stop in the road for a few seconds,

17 just past the first set of signs notifying drivers of the impending checkpoint. Sergeant

18 Cottrell, still in his vehicle, pulled forward toward the truck, at which point the truck

19 turned and attempted to enter a parking lot to its right that had been blocked off. The



                                               3
 1 truck, in what appeared to be an attempt to drive around the barricade and enter the

 2 parking lot, then drove up onto the curb. Sergeant Cottrell could see the driver once

 3 the truck began to drive onto the curb. Sergeant Cottrell drove toward the truck,

 4 activating his emergency lights, and stopped two to three feet in front of the truck,

 5 facing it head-on.

 6   {4}   Sergeant Cottrell got out of his vehicle and made contact with Defendant, who

 7 was in the driver’s seat of the truck. Defendant identified herself and explained that

 8 the truck had gone up onto the curb because she was not used to driving in that part

 9 of the city. Sergeant Cottrell’s lapel video begins moments into Defendant’s

10 explanation. There was a male passenger in the truck who attempted to answer

11 Sergeant Cottrell’s questions for Defendant. When Sergeant Cottrell requested proof

12 of insurance, it was the passenger who retrieved the truck’s insurance information and

13 handed it to Defendant. During his interaction with Defendant, Sergeant Cottrell

14 observed Defendant exhibited signs of intoxication, including slow, slurred speech,

15 bloodshot, watery eyes, and the smell of alcohol from her breath when she spoke.

16 When Sergeant Cottrell asked if she had been drinking, Defendant admitted to having

17 a beer two hours earlier. As a result, Sergeant Cottrell returned to his vehicle and

18 requested a DWI unit’s assistance with a DWI investigation of Defendant.




                                             4
 1   {5}   Officer Jared Frazier arrived at the scene to assist Sergeant Cottrell’s DWI

 2 investigation of Defendant. Sergeant Cottrell informed Officer Frazier about what had

 3 transpired up to that point. Officer Frazier approached the truck, which was still

 4 running, to make contact with Defendant. When Officer Frazier asked Defendant

 5 whether she had consumed any alcohol that evening, Defendant responded that she

 6 had two beers, but it had “been awhile” earlier. Officer Frazier asked her to exit the

 7 truck and informed her that he would be administering field sobriety tests for her to

 8 complete. She was reluctant to comply, explaining that though she had had a few

 9 drinks, she was actually taking responsibility for “that asshole,” pointing to the male

10 passenger in the truck. Defendant ultimately refused to take the field sobriety tests,

11 and as a result, Officer Frazier placed her under arrest for DWI. Officer Frazier gave

12 Defendant a twenty-minute deprivation period to allow any alcohol in her mouth to

12 evaporate. Officer Frazier then read her the implied consent advisory. Officer Frazier

13 testified that he read the following advisory:

14         Listen to me while I tell you something very important. You’re under
15         arrest for DWI. The New Mexico Implied Consent Act requires you to
16         submit to a breath test, a blood test, or both, to determine the alcohol or
17         drug content of your blood. After you take one or both of our tests, you
18         have the right to choose an additional, independent test. If you choose to
19         take the additional independent test, you have a right to a reasonable
20         opportunity to arrange for a physician, licensed nurse, laboratory
21         technician or technologist that is employed by a hospital or physician of
22         your own choice to perform the additional chemical test. The cost of the



                                               5
12         additional independent test is paid for by the Albuquerque Police
13         Department.

14 Defendant refused to take a breath test. Officer Frazier informed her of the

15 consequences of refusal, including losing her driver’s license and a possibly greater

16 prison sentence if convicted of DWI. He again gave her a chance to take the test, and

17 she again refused. Officer Frazier recorded his encounter with Defendant on his lapel

18 camera.

19   {6}   At the close of the State’s case, Defendant moved for a directed verdict, arguing

20 that the State had not presented evidence that the test Defendant refused met all

21 regulatory requirements set forth by the Scientific Laboratory Division (SLD). The

22 trial court denied Defendant’s motion, concluding that the State had presented

23 evidence sufficient to make a prima facie case of aggravated DWI. Defendant also

24 asserted that because one of the lapel videos was missing a few seconds of the

25 conversation between Sergeant Cottrell and Defendant, she was entitled to a jury

26 instruction, pursuant to Ware, 1994-NMSC-091, ¶ 26.

27   {7}   The State objected on the basis that suppression motions must be made before

28 trial. Defense counsel attempted to clarify that the instruction sought an adverse

29 inference, rather than suppression. Defense counsel further explained that Ware

30 required uncollected evidence to be material and that where evidence is not collected

31 due to an officer’s gross negligence, the court should issue an instruction that any

                                               6
12 uncollected evidence would have been unfavorable to the State. Defense counsel

13 suggested that the delay in the lapel camera’s recording was material to Defendant’s

14 case and that Sergeant Cottrell’s failure to activate the camera to accommodate that

15 delay was directly contrary to standard operating procedures, therefore constituting

16 gross negligence. The State countered that the determination of whether Sergeant

17 Cottrell was grossly negligent should have been determined before trial through a

18 motion hearing, citing Rule 7-304 NMRA as support. The trial court opined that had

19 there been a pre-trial determination as to gross negligence or reasonable inference, the

20 tendered instruction may have been appropriate. Without such a determination;

21 however, the trial court reasoned that the issue was one of pre-trial discovery and

22 ultimately denied the requested instruction. The trial court noted that Defendant’s

23 argument seemed like an attempt to “back door an argument to the jury.” Defense

24 counsel then stated, for the record, that if the propriety of the instruction was an issue

25 that should have been raised before trial, Defendant’s trial counsel was ineffective.

26 The trial court declined to find defense counsel ineffective.

27   {8}   Defendant took the stand as the only defense witness. She testified that on

28 November 28, 2013, she had been on a dinner date with the male passenger and that

29 they had consumed alcohol that evening. She testified that when they approached the

30 checkpoint, he was driving and she was in the passenger seat of his truck. She testified



                                               7
12 that the man stopped upon seeing the checkpoint, grabbed her by her arm and hair,

13 threatened her, and pulled her into the driver’s seat. While this was happening, the car

14 drifted to the side of the road and hit the curb. She stated that the officer that came to

15 the window of the truck asked her why she had switched places with the passenger,

16 and whether she was going to take responsibility. Defendant testified that she did not

17 answer the officer’s questions because she knew that the officer had seen her switch

18 places with the passenger. According to Defendant, when she told the officer she was

19 taking responsibility, she was referring to switching places with the passenger; she did

20 not yet realize she was part of a DWI investigation. The jury convicted Defendant of

21 aggravated driving under the influence and careless driving.

22 II.     DISCUSSION

23 A.      Test Compliance with SLD Regulations

24   {9}   Defendant asserts that it was error for the trial court to deny her motion for

25 directed verdict on the aggravated DWI charge when the State did not provide

26 evidence that the breath test she refused either complied with SLD regulations or was

27 certified by SLD. A directed verdict is appropriate if there is no legally sufficient

28 evidentiary basis for a reasonable jury to rule in favor of the non-moving party. See

29 State v. Baca, 2015-NMSC-021, ¶ 31, 352 P.3d 1151 (“A directed verdict, technically

30 appropriate only in cases tried by a jury, requires a court to decide at the conclusion



                                               8
12 of the state’s case whether the direct or circumstantial evidence admitted at trial,

13 together with all reasonable inferences to be drawn therefrom, will sustain a finding

14 of guilt beyond a reasonable doubt.” (internal quotation marks and citation omitted)),

15 cert. denied sub nom. Baca v. State, ___ U.S. ___, 136 S. Ct. 255 (2015); see also

16 Rule 5-607(E) NMRA (stating that “out of the presence of the jury, the court shall

17 determine the sufficiency of the evidence, whether or not a motion for directed verdict

18 is made”). Defendant seems to suggest we review this issue for an abuse of discretion;

19 however, the proper standard of review for a denial of a directed verdict motion is

20 sufficiency of the evidence. See State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821,

21 192 P.3d 1198.

22   {10}   “The test for sufficiency of the evidence is whether substantial evidence of

23 either a direct or circumstantial nature exists to support a verdict of guilt beyond a

24 reasonable doubt with respect to every element essential to a conviction.” Id. (internal

25 quotation marks and citation omitted). “We do not weigh evidence or substitute our

26 judgment for that of the trial court so long as the jury was presented with such relevant

27 evidence as a reasonable mind might accept as adequate to support its verdict.” State

28 v. Coleman, 2011-NMCA-087, ¶ 19, 150 N.M. 622, 264 P.3d 523 (alteration, internal

29 quotation marks, and citation omitted). “[A] reviewing court must view the evidence

30 in the light most favorable to the state, resolving all conflicts therein and indulging all



                                                9
12 permissible inferences therefrom in favor of the verdict.” State v. Graham, 2005-

13 NMSC-004, ¶ 6, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation

14 omitted).

15   {11}   We analyze the evidence for sufficiency in light of the jury instructions

16 submitted at trial. Coleman, 2011-NMCA-087, ¶ 19; see State v. Schackow, 2006-

17 NMCA-123, ¶ 8, 140 N.M. 506, 143 P.3d 745 (“Jury instructions become the law of

18 the case against which the sufficiency of the evidence is to be measured.” (internal

19 quotation marks and citation omitted)).1 “We review the district court’s application

20 of the law to the facts de novo.” State v. Barreras, 2007-NMCA-067, ¶ 3, 141 N.M.

21 653, 159 P.3d 1138.

22   {12}   To convict a defendant of aggravated DWI for a refusal to submit to testing, the

23 state must prove beyond a reasonable doubt that:

24                1.     The defendant operated a motor vehicle;

25                 2.     At that time the defendant was under the influence of
26          intoxicating liquor; that is, as a result of drinking liquor the defendant
27          was less able to the slightest degree, either mentally or physically, or
28          both, to exercise the clear judgment and steady hand necessary to handle
29          a vehicle with safety to the person and the public . . . ;

30                3.     The defendant refused to submit to chemical testing[.]

          1
32          We note that the jury instructions actually given to the jury were not filed in
33 the record proper. We therefore presume that the jury was instructed in accordance
34 with the uniform jury instruction. Neither party suggests that the instructions given
35 differ from the uniform instruction in any way.

                                               10
12 UJI 14-4508 NMRA. Refusal to submit to chemical testing occurs if:

13                 1.    [T]he defendant was arrested on reasonable grounds to
14          believe that the defendant was driving while under the influence of
15          intoxicating liquor or drugs;

16                 2.     [T]he defendant was advised by a law enforcement officer
17          that failure to submit to the test could result in the revocation of the
18          defendant’s privilege to drive;

19               3.      [A] law enforcement officer requested the defendant to
20          submit to a chemical breath . . . test;

21               4.      [T]he defendant was conscious and otherwise capable of
22          submitting to a chemical test; and

23                5.     [T]he defendant willfully refused to submit to a breath . . .
24                       test.

25 UJI 14-4510 NMRA.

26   {13}   It is clear from a review of the record that the State produced evidence that,

27 when viewed in the light most favorable to the State, supports each of these elements.

28 The testimony that when Sergeant Cottrell approached the truck moments after it had

29 stopped, the engine was still running and Defendant was sitting behind the wheel is

30 sufficient to give rise to an inference that Defendant operated the vehicle. Defendant’s

31 bloodshot, watery eyes and slurred speech, in addition to the truck’s attempt to avoid

32 the sobriety checkpoint, are sufficient to give rise to an inference that Defendant was

33 under the influence of an intoxicating liquor. Cf. State v. Anaya, 2009-NMSC-043, ¶

34 15, 147 N.M. 100, 217 P.3d 586 (“Evading a marked DWI checkpoint is a specific


                                               11
12 and articulable fact that is sufficient to predicate reasonable suspicion for an

13 investigatory stop.”). Officer Frazier’s testimony is direct evidence that he requested

14 Defendant submit to a breath test, that Defendant was conscious when asked to submit

15 to the test, that Defendant was advised of the possible repercussions of refusing to

16 submit to the test, and that Defendant twice refused to submit to a breath test. To the

17 extent that any contrary evidence exists, it was up to the jury and the jury alone to

18 resolve conflicting evidence. See State v. Sanchez, 2000-NMSC-021, ¶ 32, 129 N.M.

19 284, 6 P.3d 486 (noting that conflicting evidence introduced by the defendant “does

20 not provide a basis for reversal because the jury is free to reject [the d]efendant’s

21 version of the facts” (internal quotation marks and citation omitted)).

22   {14}   Defendant’s assertion of error, stemming from a denied motion for directed

23 verdict but based in the language of the statute itself rather than the elements set forth

24 in the jury instruction, fails to take into account the nature of our review on appeal.

25 The issue is not framed as one in which a jury instruction was altered to require the

26 State to prove SLD certification, thereby allowing for the statutory interpretation that

27 Defendant suggests. Rather, it is a denial of a directed verdict motion which we review

28 for sufficient evidence and resolve in the light most favorable to the State.

29 Additionally, Defendant has failed to cite to any legal authority to support her

30 interpretation of the statute. See ITT Educ. Servs., Inc. v. N.M. Taxation & Revenue



                                               12
12 Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969 (noting that this Court

13 will not consider issues that are unsupported by cited authority).

14 B.       The Ware Instruction

15   {15}   Defendant asserts that the trial court abused its discretion when it denied her

16 proffered Ware instruction. The State argued and the district court agreed that the

17 request for the Ware instruction should have been made before trial. Defendant

18 responded by arguing that there is nothing in Ware requiring that a request for an

19 adverse inference jury instruction based upon an officer’s gross negligence, be made

20 before trial. She also clarifies that she was not seeking a suppression remedy. On

21 appeal, Defendant’s argument largely ignores Ware’s requirements regarding evidence

22 of gross negligence and entitlement to the instruction in general. There is nothing in

23 the record to show that Defendant was entitled to the Ware instruction. As such, the

24 trial court properly denied Defendant’s request.

25   {16}   Whether a court properly refused a tendered jury instruction is a mixed question

26 of law and fact. State v. Lucero, 2010-NMSC-011, ¶ 11, 147 N.M. 747, 228 P.3d

27 1167; see State v. Almanzar, 2014-NMSC-001, ¶ 9, 316 P.3d 183 (stating that an

28 appellate court reviews “factual matters with deference to the [trial] court’s findings

29 if substantial evidence exists to support them, and it reviews the [trial] court’s

30 application of the law de novo”). “A defendant is entitled to an instruction on a theory



                                               13
12 of the case where the evidence supports the theory.” State v. Salazar, 1997-NMSC-

13 044, ¶ 50, 123 N.M. 778, 945 P.2d 996.

14   {17}   Our Supreme Court has adopted a two-part test for deciding whether sanctions

15 against the State are appropriate when police fail to gather evidence from a crime

16 scene. See Ware, 1994-NMSC-091, ¶ 23 (“We do not condone shoddy and inadequate

17 police investigation procedures at the expense of a criminal defendant’s right to a fair

18 trial.”). First, “the evidence that the [s]tate failed to gather from the crime scene must

19 be material to the defendant’s defense.” Id. ¶ 25. Whether evidence is material is a

20 question of law to be determined by the court. Id. Evidence is material “if there is a

21 reasonable probability that, had the evidence been available to the defense, the result

22 of the proceeding would have been different.” Id. (alteration, internal quotation marks,

23 and citation omitted). “A reasonable probability is a probability sufficient to

24 undermine confidence in the outcome.” Id. (internal quotation marks and citations

25 omitted).

26   {18}   Second, where the trial court decides the missing evidence is material, it then

27 considers the conduct of the investigating officer. Id. ¶ 26. There are several levels of

28 an investigating officer’s conduct to be considered for purposes of this analysis: bad

29 faith, gross negligence, negligence, oversight, or good faith. Id. An act done with bad

30 faith is that which is done in an attempt to prejudice the defendant’s case. Id. Gross



                                               14
12 negligence occurs where, for instance, an officer acts in a manner that is “directly

13 contrary to standard police investigatory procedure.” Id. Where an officer’s actions

14 were grossly negligent, “the trial court may instruct the jury that it can infer that the

15 material evidence not gathered from the crime scene would be unfavorable to the

16 [s]tate.” Id. However, if the investigating officer’s failure to gather evidence appears

17 to be the result of negligence, an oversight or done in good faith, sanctions such as

18 suppression or a negative inference jury instruction are inappropriate. Id. In that

19 situation, the defendant may simply “examine the prosecution’s witnesses about the

20 deficiencies of the investigation and argue the investigation’s shortcomings against

21 the standard of reasonable doubt.” Id.

22   {19}   It is clear from the evidence that Sergeant Cottrell activated his lapel camera.

23 Although Sergeant Cottrell stated that he activated his lapel camera immediately upon

24 approaching the truck, the lapel video introduced as an exhibit at trial begins moments

25 into Sergeant Cottrell’s conversation with Defendant. Sergeant Cottrell testified that

26 the particular brand of lapel camera being used at that time was “not very user-

27 friendly,” explaining that they would sometimes fail to turn on and had poor video and

28 sound quality. To turn the camera on, Sergeant Cottrell explained that a switch had to

29 be turned to on, and then there was a three-second delay before the camera began

30 recording. The record before us indicates the delay in Sergeant Cotrell’s lapel camera,



                                               15
12 resulting in a failure to record the first few moments of his interaction with Defendant,

13 was certainly not anything more than “mere inadvertence or ordinary negligence” and

14 cannot stand as a basis for an award of sanctions. Id. ¶ 27.

15   {20}   We need not address whether the evidence that Sergeant Cottrell allegedly

16 failed to collect was material because, it is clear that Defendant cannot show the

17 officers’ conduct in this case warranted the giving of the instruction. Defendant

18 acknowledges that there is no evidence to support an assertion or finding of bad faith

19 by Sergeant Cottrell. The majority of Defendant’s briefing on this issue focuses on the

20 fact that she was not seeking suppression, and that she instead sought only an

21 inference instruction. Looking to the arguments she made below, it seems Defendant

22 is suggesting that Sergeant Cottrell’s failure to capture the first few seconds of his

23 encounter with Defendant was gross negligence, which—if supported by

24 evidence—may warrant such an instruction.

25   {21}   While Defendant takes the time to point out that “jury instructions must

26 conform to the evidence presented,” she points to no evidence that suggests Sergeant

27 Cottrell acted in a grossly negligent manner or in a manner that was directly contrary

28 to standard police investigatory procedure. According to the evidence presented, even

29 though APD generally expected officers to record every contact with civilians on their

30 lapel cameras, that procedure had been specifically modified for the checkpoint that



                                              16
12 evening. Instead of recording every contact, the procedure was to record encounters

13 only once the officers had reasonable suspicion to conduct a DWI investigation.

14   {22}   In addition, we note that even if Sergeant Cottrell’s actions were the result of

15 gross negligence, the trial court still has discretion in deciding whether to submit the

16 Ware instruction to the jury. See id. ¶ 26 (stating that “[i]f it is determined that the

17 officers were grossly negligent . . . the trial court may instruct the jury” as to an

18 inference (emphasis added)).

19   {23}   Defendant has made no argument that the missing evidence was material such

20 that there was a reasonable probability that the missing evidence would have made a

21 difference in the result of Defendant’s proceedings. The evidence does not support

22 Defendant’s assertion that Sergeant Cottrell’s actions in this case were grossly

23 negligent. As such, Defendant was not entitled to have a Ware instruction submitted

24 to the jury. Because she was not entitled to the instruction at all, we need not decide

25 when a proffer of a Ware instruction must be made.

26 C.       Ineffective Assistance of Counsel

27   {24}   After the trial court denied Defendant’s requested Ware instruction, defense

28 counsel, assuming the denial was based on the timing of the request, suggested that

29 he had been ineffective for failing to raise the issue pretrial. On appeal, Defendant

30 suggests that she was prejudiced because the district court refused to consider giving



                                               17
12 the tendered instruction due to the timing of the request, the district court would have

13 given the instruction if the request had been timely, and the results of the proceeding

14 would have been different if the instruction had been given. Defendant does not,

15 however, demonstrate that her counsel’s performance fell below the standard of a

16 reasonably competent attorney. See State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M.

17 218, 979 P.2d 729 (stating that the rule to prove the ineffective assistance of counsel

18 claim, the defendant must show that “counsel’s performance fell below that of a

19 reasonably competent attorney,” and that “the deficient performance prejudiced the

20 defense” (internal quotation marks and citation omitted)).

21   {25}   “When an ineffective assistance claim is first raised on direct appeal, we

22 evaluate the facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19,

23 132 N.M. 657, 54 P.3d 61. “If facts necessary to a full determination are not part of

24 the record, an ineffective assistance claim is more properly brought through a habeas

25 corpus petition, although an appellate court may remand a case for an evidentiary

26 hearing if the defendant makes a prima facie case of ineffective assistance.” Id.

27 “Habeas corpus proceedings are the preferred avenue for adjudicating ineffective

28 assistance of counsel claims, because the record before the trial court may not

29 adequately document the sort of evidence essential to a determination of trial

30 counsel’s effectiveness.” State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163



                                              18
12 P.3d 494 (alternation, internal quotation marks, and citation omitted). “This preference

13 stems from a concern that the record before the trial court may not adequately

14 document the sort of evidence essential to a determination of trial counsel’s

15 effectiveness.” State v. Schoonmaker, 2008-NMSC-010, ¶ 31, 143 N.M. 373, 176 P.3d

16 1105 (internal quotation marks and citation omitted), overruled on other grounds by

17 State v. Consaul, 2014-NMSC-030, ¶ 38, 332 P.3d 850. As such, Defendant’s

18 ineffective assistance of counsel claim is more appropriately addressed through habeas

19 proceedings.

20 III.     CONCLUSION

21   {26}   For the reasons stated above, we find no error in the trial court’s decision to

22 deny Defendant’s motion for directed verdict and tendered jury instruction. We also

23 find that Defendant’s claim of ineffective assistance of counsel is more appropriately

24 addressed through habeas proceedings. We therefore affirm Defendant’s convictions.

25   {27}   IT IS SO ORDERED.


26
27                                          M. MONICA ZAMORA, Judge




                                              19
12 WE CONCUR:


13
14 TIMOTHY L. GARCIA, Judge


15
16 J. MILES HANISEE, Judge




                              20
