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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. A-1-CA-35235

 5 MICHAEL SPITZER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
 8 Jerry H. Ritter, Jr., District Judge

 9 Hector H. Balderas, Attorney General
10 Laura E. Horton, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 Tania Shahani, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 BOHNHOFF, Judge.

19   {1}    Following a jury trial, Defendant Michael Spitzer was convicted of three counts
 1 of forgery based on his use of his brother’s identification when he sold jewelry at a

 2 pawn shop. On appeal, Defendant raises two issues: (1) whether the district court

 3 abused its discretion under Rule 11-403 NMRA and Rule 11-404(B) NMRA in

 4 admitting evidence that the jewelry was stolen, and (2) whether Defendant received

 5 ineffective assistance of counsel where defense counsel elicited direct examination

 6 testimony from Defendant regarding his prior felony convictions. We conclude that

 7 the district court did not abuse its discretion in admitting evidence that the pawned

 8 jewelry was stolen. On the present record Defendant has not established a prima facie

 9 case that he was prejudiced by any error on the part of his trial counsel in eliciting the

10 testimony about Defendant’s prior felony convictions and, therefore, we affirm on that

11 issue as well. Defendant may, however, pursue his claim by means of a petition for

12 habeas corpus relief.

13 BACKGROUND

14   {2}   On September 20, 25, and 27, 2013, Defendant pawned jewelry at the Gold ’N

15 Cash Roundup in Alamogordo. On each of those occasions, Defendant used his

16 brother’s identification when he pawned the jewelry and signed his brother’s name on

17 the receipts. Around that time, Misty Curry-Hernandez reported that her deceased

18 mother’s home had been burglarized and her mother’s jewelry had been stolen. Upon

19 finding some of the stolen jewelry at the Gold ’N Cash Roundup, law enforcement



                                               2
 1 reviewed the pawn shop’s receipts and traced the items back to Defendant’s brother

 2 and ultimately to Defendant. Defendant told law enforcement that the jewelry he

 3 pawned came from his deceased father’s belongings in Texas, and that he had his

 4 brother’s permission to sign his name and use his identification.However, Ms. Curry-

 5 Hernandez positively identified some of her mother’s jewelry from the items that

 6 Defendant pawned, including a buffalo belt buckle with turquoise, a snuff can, and a

 7 necklace. Ms. Curry-Hernandez was also shown photographs of other pieces of

 8 jewelry pawned by Defendant that she could not positively identify as having been her

 9 mother’s.

10   {3}   The State did not contend that Defendant had burglarized Ms. Curry-

11 Hernandez’s mother’s home. On the contrary, Otero County Sheriff’s Deputy Emilio

12 Alonzo testified that Defendant was not the person who had burglarized Ms. Curry-

13 Hernandez’s mother’s home because still photographs from a game camera inside the

14 home showed a different individual burglarizing the home.

15   {4}   Defendant was charged by grand jury indictment on October 8, 2014, with three

16 counts of forgery (make or alter). As set forth in the jury instructions, which

17 Defendant does not challenge on appeal, the State had to establish the following

18 elements of the crime:

19         1.    [D]efendant made a false signature;



                                             3
 1         2.    At the time, [D]efendant intended to injure, deceive or cheat
 2         Kenneth Spitzer [Defendant’s brother], Gold’n Cash Roundup, or
 3         another;

 4         3.     This happened in New Mexico on or about the [dates in question].

 5 The trial lasted one day. The jury deliberated approximately fifteen minutes before

 6 returning with its verdict.

 7 DISCUSSION

 8 A.      The District Court Did Not Abuse Its Discretion in Admitting Evidence
 9         That the Jewelry Defendant Pawned Was Stolen

10   {5}   The district court’s decision to admit evidence under Rule 11-404(B) and Rule

11 11-403 is reviewed for abuse of discretion. State v. Otto, 2007-NMSC-012, ¶¶ 9, 14,

12 141 N.M. 443, 157 P.3d 8. “An abuse of discretion occurs when the ruling is clearly

13 against the logic and effect of the facts and circumstances of the case. We cannot say

14 the trial court abused its discretion by its ruling unless we can characterize it as clearly

15 untenable or not justified by reason.” Id. ¶ 9 (internal quotation marks and citation

16 omitted). Because Rule 11-403 requires the district court to determine whether there

17 would be unfair prejudice to the defendant if Rule 11-404(B) evidence is admitted and

18 such a determination is “fact sensitive, much leeway is given trial judges who must

19 fairly weigh probative value against probable dangers.” Otto, 2007-NMSC-012, ¶ 14

20 (internal quotation marks and citation omitted).

21 1.      Admissibility Under Rule 11-404(B) and Rule 11-403

                                                4
 1   {6}   Rule 11-404(B)(1) states, “Evidence of a crime, wrong, or other act is not

 2 admissible to prove a person’s character in order to show that on a particular occasion

 3 the person acted in accordance with the character.” Rule 11-404(B)(2) states, “This

 4 evidence may be admissible for another purpose, such as proving motive, opportunity,

 5 intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

 6 According to our Supreme Court, “[t]his list is not exhaustive and evidence of other

 7 wrongs may be admissible on alternative relevant bases so long as it is not admitted

 8 to prove conformity with character.” Otto, 2007-NMSC-012, ¶ 10 (internal quotation

 9 marks and citation omitted). Absence of mistake or accident is a legitimate non-

10 character use of Rule 11-404(B) evidence. See Otto, 2007-NMSC-012, ¶ 16; see

11 generally State v. Jordan, 1993-NMCA-091, ¶ 16, 116 N.M. 76, 860 P.2d 206. Before

12 admitting evidence pursuant to Rule 11-404(B), the trial court “must find that the

13 evidence is relevant to a material issue other than the defendant’s character or

14 propensity to commit a crime, and must determine that the probative value of the

15 evidence outweighs the risk of unfair prejudice, pursuant to Rule 11-403.”

16 Otto, 2007-NMSC-012, ¶ 10.

17   {7}   Rule 11-403 states, “[t]he court may exclude relevant evidence if its probative

18 value is substantially outweighed by a danger of one or more of the following: unfair

19 prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or



                                               5
 1 needlessly presenting cumulative evidence.” “The purpose of Rule 11-403 is not to

 2 guard against any prejudice whatsoever, but only against the danger of unfair

 3 prejudice. Evidence is not unfairly prejudicial simply because it inculpates the

 4 defendant. Rather, prejudice is considered unfair when it goes only to character or

 5 propensity.” Otto, 2007-NMSC-012, ¶ 16 (alteration, first emphasis, internal quotation

 6 marks, and citations omitted).

 7 2.      Analysis

 8   {8}   The State told the panel during voir dire that there would be testimony

 9 regarding stolen property and Defendant objected. The district court asked counsel to

10 approach the bench and held a conference out of the jurors’ earshot. During the

11 conference defense counsel argued that “the charges have nothing to do with burglary

12 or theft or stolen property” and objected to “this constant reference to stolen

13 property.” The district court pointed out that it had not yet heard any reference to

14 burglary and asked the State whether it could prosecute its case without mentioning

15 stolen property. The State replied that it could not, explaining that the fact that

16 Defendant pawned stolen jewelry was “relevant to the State’s case” because “it gives

17 a motive for using a false name. This isn’t just a mistake.” Defense counsel insisted

18 that “any reference to try to get a conviction by referring to other crimes or possible

19 crimes or potential crimes” was inappropriate. The district court ruled that it would



                                              6
 1 allow the State to refer to the stolen property during voir dire: “It’s a [Rule 11-] 404B

 2 issue, which also requires a Rule 403 analysis. [The State] has articulated a reason

 3 other than propensity for the evidence to be relevant.”

 4   {9}   Before opening statements but after voir dire, the parties again argued this

 5 evidentiary issue, specifically with respect to the Rule 11-403 analysis. The State

 6 elaborated on its non-character and non-propensity reasons for wanting to admit

 7 evidence that the pawned jewelry was stolen:

 8         The State intends to use the evidence that the items were stolen for
 9         motive, for lack of mistake as far as . . . Defendant goes in using his
10         brother’s identification. When the agent . . . interviewed . . . Defendant,
11         he did give the statement that the items belonged to his family members
12         and [that] therefore does clearly make Ms. Curry-Hernandez’s
13         identification of the items as belonging to her mother, or her mother’s
14         estate, relevant. Additionally, Your Honor, the State intends on
15         presenting evidence that in fact it was
16         not . . . Defendant . . . who . . . committed the burglaries. One of the
17         things the family did when they discovered the house was being
18         burglarized was they put a game camera in there—a camera that
19         automatically takes photos when movement is detected. The State
20         intends to present photographic evidence from that game camera, which
21         clearly shows that [the burglar] is not . . . Defendant. So, the State is in
22         no way telling this jury that . . . Defendant was the person who
23         burglarized the house. But [the stolen jewelry evidence] is relevant to the
24         State’s case and it is relevant to . . . the lack of mistake and intent on [the
25         part of] Defendant.”

26 When defense counsel disputed the proposition that the stolen jewelry evidence was

27 relevant to Defendant’s intent, the district court asked, “Wouldn’t someone have a

28 motive to conceal their own identity if they were pawning stolen items, which would


                                                 7
 1 help support the State’s assertion that the false information was provided with intent

 2 to deceive?” Defense counsel replied only that Defendant was on the surveillance

 3 footage at the pawn shop, and so Defendant’s use of his brother’s name and

 4 identification to hide his own identity because he was pawning stolen jewelry would

 5 ultimately be unsuccessful.

 6   {10}   The district court reaffirmed its earlier ruling, stating, “The evidence is relevant

 7 to show both motive and absence of mistake or accident.” The district court continued,

 8 finding that the evidence

 9          is probative of those issues thus helping the State to establish the element
10          of intent, which is a required element [and] that while there is some risk
11          that a jury confronted with evidence that the property was
12          stolen . . . could infer that . . . [D]efendant somehow was involved with
13          the stealing inside, that he’s either a bad person because he would steal
14          or he would be more likely to commit the forgery because he’s a person
15          who would be involved in burglary—that while those are risks and there
16          is some prejudicial effect to those, that the probative value of identifying
17          a motive to deceive is greater than the prejudicial value, particularly
18          where the State will introduce evidence that . . . Defendant was not the
19          burglar.

20 As part of its case the State did introduce evidence that Defendant was not the burglar.

21   {11}   Defendant argues that evidence of the burglaries of Ms. Curry-Hernandez’s

22 mother’s home was impermissible character and propensity evidence, and that its

23 probative value was outweighed by its unfair prejudice. We disagree. Defendant told

24 law enforcement that the jewelry was from his deceased father’s belongings. The State



                                                 8
 1 properly could contradict Defendant’s statement by introducing evidence from Ms.

 2 Curry-Hernandez positively identifying jewelry that Defendant pawned as her

 3 mother’s, and that the jewelry had been stolen from her mother’s home. Such evidence

 4 was relevant and admissible to establish Defendant’s motive for and intent in

 5 misrepresenting his identity to the pawn shop owner. That is, it tended to establish

 6 that, while Defendant may not have been the burglar, he was aware that the jewelry

 7 was not from his father’s estate and instead was stolen. This would explain why he

 8 would not want the pawn shop owner to know who he was and be able to trace him.

 9 Defendant was free to argue that, because Defendant was filmed by the pawn shop’s

10 surveillance camera, common sense would dictate that any use of his brother’s name

11 and identification to hide his own identity would be futile, but that is an argument for

12 the jury and not a basis for excluding the evidence.

13   {12}   The district court analyzed whether evidence that the jewelry was stolen was

14 being introduced for a non-character, non-propensity purpose under Rule 11-404(B),

15 and whether the evidence was more prejudicial than probative under Rule 11-403.

16 Although the district court acknowledged that there was a risk of prejudice if the jury

17 heard the jewelry was stolen, the district court concluded that the substantial probative

18 value of the evidence outweighed its prejudicial effect, which was mitigated by the

19 State introducing evidence that Defendant did not steal the jewelry. We cannot



                                               9
 1 conclude that the district court abused its discretion in admitting the evidence where

 2 it was offered to show motive, lack of mistake, and intent. We therefore affirm the

 3 district court’s admission of evidence that the jewelry was stolen.

 4 B.       Defendant Has Not Established a Prima Facie Case of Ineffective
 5          Assistance of Counsel

 6   {13}   At trial, Defendant’s direct examination began as follows:

 7          Defense counsel: Before we get to the details of this matter, let me ask
 8                           you a couple of brief questions. Have you ever been
 9                           convicted of a crime?

10          Defendant:         Yes.

11          Defense counsel: What were the convictions?

12          Defendant:         I had a forgery in ‘89. I had a delivery of a controlled
13                             substance I believe in 2009. A theft. . . . I had a
14                             forgery in ‘89, I had a theft in 2009, I had a delivery
15                             in 2008, I believe.

16          Defense counsel: To the best of your recollection, are those all of your
17                           convictions?

18          Defendant:         Pretty much, yes, sir.

19          Defense counsel: When you say pretty much, are there other
20                           convictions and you just can’t remember them or . . .

21          Defendant:         Other misdemeanors, fines, that’s all the felonies,
22                             yes sir.

23 Defendant argues that this line of questioning constituted ineffective assistance of

24 counsel, because it unnecessarily disclosed to the jury Defendant’s history of crimes


                                               10
 1 implicating his honesty and, in addition to its impeachment value, it indirectly would

 2 have predisposed the jury to conclude that he committed the forgery crime in question.

 3   {14}   Ineffective assistance of counsel requires that a defendant “first demonstrate

 4 error on the part of counsel, and then show that the error resulted in prejudice. Trial

 5 counsel is generally presumed to have provided adequate assistance. An error only

 6 occurs if representation falls below an objective standard of reasonableness.” State v.

 7 Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (alteration, internal

 8 quotation marks, and citations omitted). However, “[i]f any claimed error can be

 9 justified as a trial tactic or strategy, then the error will not be unreasonable.” Id. With

10 respect to the prejudice prong, “[a] defendant must show a reasonable probability that,

11 but for counsel’s unprofessional errors, the result of the proceeding would have been

12 different.” Id. (internal quotation marks and citation omitted). “[The d]efendant has

13 the burden of showing ineffective assistance of counsel.” State v. Trujillo, 2002-

14 NMSC-005, ¶ 38, 131 N.M. 709, 42 P.3d 814.

15   {15}   In Bernal our Supreme Court elaborated futher on the standard and procedure

16 for appellate review of claims of ineffective assistance of counsel:

17          Oftentimes, the record on appeal does not provide enough information
18          to adequately determine whether an action was error or caused prejudice.
19          When such questions arise, further evidence is often required. Rather
20          than remand the case to the trial court for further hearings, [the appellate
21          courts have] a general preference that such claims be brought and
22          resolved through habeas corpus proceedings. Therefore, on direct appeal,


                                                11
 1      only when a defendant presents a prima-facie case of ineffective
 2      assistance of counsel will [the appellate courts] remand to the trial court
 3      for evidentiary proceedings.
 4
 5 2006-NMSC-050, ¶ 33 (citations omitted); see State v. Crocco, 2014-NMSC-016, ¶¶

 6 14-15, 327 P.3d 1068. A defendant presents a prima facie case of ineffective

 7 assistance of counsel on appeal when “(1) it appears from the record that counsel

 8 acted unreasonably; (2) the appellate court cannot think of a plausible, rational

 9 strategy or tactic to explain counsel’s conduct; and (3) the actions of counsel are

10 prejudicial.” State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22

11 (internal quotation marks and citation omitted). “When the record on appeal does not

12 establish a prima facie case of ineffective assistance of counsel, this Court has

13 expressed its preference for resolution of the issue in habeas corpus proceedings over

14 remand for an evidentiary hearing.” Id. ¶ 37.

15   {16}   The State argues that defense counsel presumably chose to elicit this testimony

16 as a matter of trial strategy: “Defense counsel could have believed this evidence would

17 be used to attack Defendant’s character, and decided to address it head on in direct

18 [examination] with Defendant to control how it was presented to the jury.” However,

19 as Defendant points out, that scenario simply begs further questions about the

20 reasonableness of defense counsel’s decision. First, Rule 11-609(B)(2) NMRA

21 requires that where the resulting conviction or release from confinement occurred



                                              12
 1 more than ten years earlier, the party offering evidence of conviction of a crime must

 2 give the other party advance notice. There is no indication in the record that the State

 3 had notified Defendant of any intent to use evidence of the 1989 forgery conviction.

 4 Second, the conviction for delivery of a controlled substance does not necessarily

 5 have a bearing on Defendant’s honesty, and thus there would be a question whether

 6 evidence of that conviction could meet the requirement in Rule 11-609(A)(1)(b) that

 7 its probative value outweigh its prejudicial effect on Defendant. Therefore, one can

 8 question the reasonableness of defense counsel’s decision to elicit testimony about

 9 these two convictions as opposed to simply being prepared to object on the foregoing

10 grounds if the State tried to introduce evidence of them as part of its case or on cross-

11 examination of Defendant.1

12   {17}   The record does not reflect when Defendant was released from any confinement

13 that resulted from his 1989 forgery conviction. Regardless, the foregoing concerns

14 about the likelihood that the forgery and drug-related convictions could have been

15 used to impeach Defendant persuade us that Defendant has established a prima facie

16 case that defense counsel’s decision was objectively unreasonable. To reach a final

17 decision, it would be necessary to obtain defense counsel’s explanation of what

         1
18         Evidence of the 2009 theft conviction likely would have been admissible
19 pursuant to Rule 11-609(A)(2). See State v. Martinez, 2006-NMCA-148, ¶ 16, 140
20 N.M. 792, 149 P.3d 108 (“Under existing New Mexico law, theft crimes impugn a
21 defendant’s character for truthfulness.”) .

                                              13
 1 strategy he had in mind, in light of these concerns, in starting Defendant’s direct

 2 examination by questioning him regarding his criminal history.

 3   {18}   However, to establish a prima facie case of ineffective assistance of counsel

 4 justifying remand for an evidentiary hearing, Defendant also must persuade us that

 5 defense counsel’s decision to elicit testimony about his criminal history was

 6 prejudicial, that is, a showing of “reasonable probability that, but for counsel’s

 7 unprofessional errors, the result of the proceeding would have been different.” Bernal,

 8 2006-NMSC-050, ¶ 32 (internal quotation marks and citation omitted). The State

 9 presented compelling evidence of Defendant’s guilt. He admitted he pawned the

10 jewelry using his brother’s identification. Defendant’s brother’s testimony called into

11 question Defendant’s claim that he was authorized to use his brother’s identification.

12 Defendant’s explanation of how he came to be in possession of the jewelry was

13 rebutted, and in fact the jewelry was shown to be stolen. In view of this evidence, we

14 are not persuaded that, as a matter of reasonable probability, the result of the trial

15 would have been different had Defendant not disclosed his criminal record.

16   {19}   Based on the present record, we conclude that Defendant has not established a

17 prima facie case of ineffective assistance of counsel. However, “[i]f facts beyond

18 those in the record on appeal could establish a legitimate claim of ineffective

19 assistance of counsel, [the d]efendant may assert it in a habeas corpus proceeding



                                              14
1 where an adequate factual record can be developed for a court to make a reasoned

2 determination of the issues.” Crocco, 2014-NMSC-016, ¶ 24.

3 CONCLUSION

4   {20}   We affirm Defendant’s convictions.

5   {21}   IT IS SO ORDERED.


6
7                                        HENRY M. BOHNHOFF, Judge

8 WE CONCUR:


 9
10 LINDA M. VANZI, Chief Judge


11
12 STEPHEN G. FRENCH, Judge




                                           15
