 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,762

10 NICHOLAS TRUJILLO,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
13 John W. Pope, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 WECHSLER, Judge.
 1        Defendant appeals his felony conviction for aggravated assault upon a peace

 2 officer (deadly weapon) and his misdemeanor conviction for resisting, evading, or

 3 obstructing an officer. The notice proposed to affirm, and Defendant filed a timely

 4 memorandum in opposition pursuant to a granted motion for extension of time. We

 5 remain unpersuaded by Defendant’s arguments and therefore affirm.

 6 Sufficiency of the Evidence

 7        Defendant continues to argue that there was insufficient evidence to support his

 8 convictions for aggravated assault upon a peace officer (deadly weapon) and for

 9 resisting, evading, or obstructing an officer. [DS 8; MIO 7] Defendant refers to State

10 v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer, 103 N.M. 655, 712

11 P.2d 1 (Ct. App. 1985), in support of his argument. [MIO 10]

12        We review the evidence to determine “whether substantial evidence of either

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

14 reasonable doubt with respect to every element essential to a conviction.” State v.

15 Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). Under this standard, “[w]e

16 view the evidence in the light most favorable to supporting the verdict and resolve all

17 conflicts and indulge all inferences in favor of upholding the verdict.” State v.

18 Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993). We do not re-weigh the

19 evidence nor substitute our judgment for that of the factfinder, so long as there is


                                              2
 1 sufficient evidence to support the verdict. Sutphin, 107 N.M. at 131, 753 P.2d at

 2 1319.

 3         We first address Defendant’s conviction for resisting, evading, or obstructing

 4 an officer. This conviction requires findings that Defendant intentionally fled and

 5 attempted to evade or evaded an officer with the knowledge that the officer was

 6 attempting to apprehend or arrest him. [RP 33; MIO 8] See NMSA 1978, § 30-22-

 7 1(B) (1981).

 8         The facts provide that probation officers Barbara King and Gilbert Romero

 9 arrived at Defendant’s house to conduct a “field call.” [DS 2; MIO 1-2] Probation

10 officer King testified that she observed an empty box of beer and an empty beer bottle

11 on the kitchen counter. [DS 3; MIO 2] Probation officer Romero additionally

12 testified that he observed Defendant’s eyes to be red and watery. [DS 5; MIO 4]

13 Based on the empty beer bottles and Defendant’s appearance, the probation officers

14 administered a breath test to Defendant. [DS 3; MIO 2] When the breath test results

15 indicated the presence of alcohol [DS 5; MIO 4], the probation officers testified that

16 they told Defendant that he would be taken into custody based on his probation

17 violation. [DS 3, 5; MIO 3-4, 8] According to probation officer King, Defendant

18 responded, “[n]o, I’m not going.” [DS 3; MIO 3] Probation officer King testified

19 that probation officer Romero told Defendant numerous times to place his hands


                                              3
 1 behind his back [DS 3] and that probation officer King attempted to place Defendant

 2 into handcuffs by approaching him from the side and grabbing his wrist. [DS 3, 5;

 3 MIO 3]

 4        In response to her attempt to handcuff Defendant, probation officer King

 5 testified that Defendant yanked his hand away from her [DS 3; MIO 3] and then

 6 stepped toward probation officer Romero in a “combative manner.” [DS 3; MIO 3,

 7 9] On cross-examination, probation officer King testified that, in her opinion,

 8 Defendant’s stance indicated that he was going to resist arrest and that he was backing

 9 away from probation officer Romero. [DS 4; MIO 3] Probation officer Romero

10 similarly testified that Defendant stated that he was not going to go to jail and

11 “stepped back about a step or two in kind of like a combative stance,” [MIO 4, 9] with

12 one foot in front of the other and his arms to the side. [DS 5; MIO 4] In response to

13 Defendant’s stance, probation officer Romero pepper-sprayed Defendant. [DS 3, 5;

14 MIO 3-4] The probation officers testified that Defendant then ran to the back yard,

15 with probation officer Romero in pursuit. [DS 3, 5; MIO 3]

16        We hold that the foregoing facts support Defendant’s conviction for resisting,

17 evading, or obstructing an officer. See State v. Sparks, 102 N.M. 317, 320, 694 P.2d

18 1382, 1385 (Ct. App. 1985) (defining substantial evidence as that evidence that a

19 reasonable person would consider adequate to support a defendant’s conviction). In


                                              4
 1 short, the jury could reasonably view the foregoing evidence to be such that the

 2 probation officers were acting in the lawful discharge of their duties and that

 3 Defendant, with the knowledge that officers were attempting to arrest and apprehend

 4 him, fled and attempted to evade the officers.

 5        We next address Defendant’s conviction for aggravated assault upon a peace

 6 officer (deadly weapon). This conviction requires findings that Defendant unlawfully

 7 assaulted or struck at a peace officer with a deadly weapon while the officer was in

 8 the lawful discharge of the officer’s duties. [RP 34; MIO 8] See NMSA 1978, § 30-

 9 22-22(A)(1) (1971).

10        The facts provide that after running to the back yard while being pursued by

11 probation officer Romero, Defendant got into his truck and begin to back out of the

12 driveway. [DS 5; MIO 3, 5] Probation officer Romero testified that one of the

13 truck’s windows was partially open [DS 5; MIO 3, 5] and that he yelled for

14 Defendant to stop. [DS 5; MIO 5] Probation officer Romero further testified that

15 Defendant’s truck accelerated as it was exiting the driveway [DS 5; MIO 5] and that

16 he had to jump against his car [DS 6; MIO 5] as Defendant continued to back out of

17 the driveway even though he was yelling for Defendant to stop. [DS 6; MIO 5]

18 Probation officer Romero testified that he was afraid that he was going to get run over

19 and forced into traffic on nearby River Road or that his legs would be pinned against


                                              5
 1 his car. [DS 6; MIO 5, 9] Consistent with the foregoing testimony, probation officer

 2 King testified that she saw Defendant’s truck back out of the narrow driveway at an

 3 increasingly high rate of speed and almost hit probation officer Romero. [DS 3; MIO

 4 3] Probation officer King further testified that probation officer Romero was forced

 5 to jump onto the trunk of his probation and parole vehicle to avoid being hit by

 6 Defendant’s truck. [DS 3; MIO 3]

 7        We hold that the foregoing facts support Defendant’s conviction for aggravated

 8 assault upon a peace officer (deadly weapon). See State v. Sparks, 102 N.M. at 320,

 9 694 P.2d at 1385 (defining substantial evidence as that evidence that a reasonable

10 person would consider adequate to support a defendant’s conviction). In this regard,

11 we believe that a jury could reasonably view the foregoing evidence to be such that

12 probation officer Romero was in the lawful discharge of his duties when Defendant

13 unlawfully assaulted him by almost running into him with his truck, which under these

14 circumstances was used as a deadly weapon.

15        In assessing the sufficiency of evidence for Defendant’s convictions, we

16 recognize evidence that the probation officers were engaged to each other and lived

17 together [DS 3, 4; MIO 5], and understand Defendant to argue that this suggests that

18 their testimony was not credible because “they . . . each had an opportunity to hear

19 each other’s version of the events.” [DS 3, 4; MIO 5] It was a matter for the jury,


                                             6
 1 however, to assess the credibility of the probation officers. See State v. Salas, 1999-

 2 NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (recognizing that it is for the

 3 factfinder to resolve any conflict in the testimony of the witnesses and to determine

 4 where the weight and credibility lies). Moreover, although Defendant asserts that he

 5 did not have a “combative stance” and that use of the pepper spray was unwarranted

 6 [DS 6], it was the jury’s prerogative to weigh the testimony of the witnesses and

 7 conclude that probation officer Romero reasonably viewed Defendant’s stance as

 8 threatening, thereby meriting use of the pepper spray.

 9        Lastly, we acknowledge the testimony of Defendant’s friend, witness Terry

10 Saiz, which indicates that Defendant backed out of the driveway because probation

11 officer Romero was attempting to mace him through the cracked window [DS 7; MIO

12 6-7, 9], and that probation officer Romero was not at risk of being hit by Defendant.

13 [DS 7-8; MIO 7, 9] The jury, however, as factfinder could reasonably disbelieve this

14 version of the events. See State v. Foster, 1999-NMSC-007, ¶ 42, 126 N.M. 646, 974

15 P.2d 140 (recognizing that it is up to the jury to weigh any contradictory evidence);

16 Sutphin, 107 N.M. at 131, 753 P.2d at 1319 (holding that the factfinder may reject

17 defendant’s version of events).

18 Ineffective Assistance of Counsel

19        Defendant continues to argue that his trial counsel was ineffective. [DS 8;


                                              7
 1 MIO 10] Defendant again refers to Franklin and Boyer in support of his argument.

 2 [DS 9; MIO 11] Our review of the facts and record proper gives no indication that

 3 counsel’s performance fell below that of a reasonably competent attorney or that

 4 Defendant was prejudiced by any deficient performance. See State v. Aker, 2005-

 5 NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (providing that it is the defendant’s

 6 burden to establish a prima facie case of ineffective assistance of counsel). Whether

 7 or not Defendant had prior dealings with officers [MIO 11] is not a matter of record;

 8 nonetheless, trial counsel’s decision to not cross-examine officers about any prior

 9 dealings with Defendant [MIO 11] is a matter of trial strategy that we will not second

10 guess. See State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31

11 (expressing a “preference for habeas corpus proceedings over remand when the record

12 on appeal does not establish a prima facie case of ineffective assistance of counsel”);

13 see also Lytle v. Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (stating

14 that “[o]n appeal, we will not second guess the trial strategy and tactics of the defense

15 counsel” (internal quotation marks and citation omitted)). Because the presumption

16 of competency of counsel, see State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448,

17 10 P.3d 127, has not been overcome, we affirm.

18        Based on the foregoing discussion, we affirm Defendant’s convictions.

19        IT IS SO ORDERED.


                                               8
1                                      ________________________________
2                                      JAMES J. WECHSLER, Judge


3 WE CONCUR:



4 __________________________________
5 ROBERT E. ROBLES, Judge



6 __________________________________
7 LINDA M. VANZI, Judge




                                  9
