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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. 33,557

 5 ALEXIS AUGUST,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Benjamin Chavez, District Judge

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

11 for Appellee

12   Jorge A. Alvarado, Chief Public Defender
13   Santa Fe, NM
14   Sergio J. Viscoli, Assistant Public Defender
15   Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 HANISEE, Judge.

19   {1}    Defendant appeals from an on-the-record district court judgment affirming her

20 metropolitan court conviction for DWI (first offense) and speeding. We issued a
 1 calendar notice proposing to affirm. Defendant has responded with a memorandum

 2 opinion. We affirm.

 3   {2}   Issue I: Defendant contends that “the [district] court erred in ruling a duress

 4 defense was not applicable in this matter.” [MIO 5] This Court has held that the

 5 defense of duress is available in DWI cases. State v. Rios, 1999-NMCA-069, ¶ 28, 127

 6 N.M. 334, 980 P.2d 1068. We noted, however, that “[w]e must approach the

 7 application of this defense to DWI charges with care so as not to vitiate the

 8 protectionary purpose of the strict liability statute.” Id. ¶ 16 (alteration, internal

 9 quotation marks, and citation omitted). We thus adopted a narrow articulation of the

10 duress defense in DWI cases, under which a defendant must produce sufficient

11 evidence that: “(1) he[/she] was under an unlawful and imminent threat of death or

12 serious bodily injury; (2) he[/she] did not recklessly place [herself] in a situation that

13 would likely compel [her] to engage in the criminal conduct; (3) he[/she] did not have

14 a reasonable legal alternative (in other words, [s]he could not have reasonably avoided

15 the threatened harm or the criminal conduct in which [s]he engaged); and (4) a direct

16 causal relationship existed between the criminal action and the avoidance of the

17 threatened harm. Id. ¶ 17 (internal quotation marks and citation omitted). “The

18 keystone of the analysis is that the defendant must have no alternative—either before




                                               2
 1 or during the event—to avoid violating the law.” Id. (alteration, internal quotation

 2 marks, and citation omitted).

 3   {3}   Here, Defendant claimed that she had, in fact, been a passenger of the vehicle

 4 when it was stopped, but the actual driver threatened her and forced her to switch seats

 5 by the time the officer approached the vehicle. [MIO 2] Defendant had a bench trial,

 6 and therefore the issue is not whether there was sufficient evidence to give a duress

 7 jury instruction, but whether the court, sitting as fact finder, could reject the duress

 8 defense. Because Defendant’s defense was predicated on her credibility, and the court

 9 believed that Defendant had “fabricat[ed]” her testimony [MIO 3; DS 5], the court

10 simply rejected her defense. See State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M.

11 126, 753 P.2d 1314 (noting that the fact finder is free to reject a defendant’s version

12 of events). To the extent that the judge made oral comments with respect to the

13 applicability of the duress defense had he had ruled otherwise and concluded that

14 Defendant was credible, these comments are superfluous and do not affect our

15 analysis. Cf. Ledbetter v. Webb, 1985-NMSC-112, ¶ 34, 103 N.M. 597, 711 P.2d 874

16 (explaining that a trial court’s verbal comments can be used to clarify a finding but

17 that they cannot be the basis for reversal).

18   {4}   Issue II: Defendant continues to claim that she received ineffective assistance

19 of counsel. [MIO 8] We will not decide an ineffective assistance of counsel claim on


                                              3
 1 direct appeal unless a defendant makes a prima facie showing that counsel was

 2 incompetent and the incompetence resulted in prejudice to the defense. See State v.

 3 Richardson, 1992-NMCA-112, ¶ 4, 114 N.M. 725, 845 P.2d 819, abrogated on other

 4 grounds by Allen v. Lemaster, 2012-NMSC-001, 267 P.3d 806.

 5   {5}   Here, Defendant’s docketing statement claimed that counsel was ineffective by

 6 failing to timely subpoena a defense witness. [DS 4] The district court determined that

 7 counsel was not at fault because this witness, who allegedly would have testified that

 8 Defendant’s boyfriend was abusive, was not disclosed by Defendant to counsel prior

 9 to trial. [DS 5] Therefore, the court attributed any error to Defendant, and not counsel.

10 In addition, it is purely speculative that the court, sitting as fact finder, would have

11 changed its credibility determination based on the testimony of a witness who did not

12 have direct knowledge of the actual events leading to Defendant’s arrest. See In re

13 Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion

14 of prejudice is not a showing of prejudice.”). This is also true with respect to any

15 alleged failure to provide a more thorough duress defense.

16   {6}   For the reasons set forth above, we affirm.

17   {7}   IT IS SO ORDERED.


18
19                                          J. MILES HANISEE, Judge


                                               4
1 WE CONCUR:


2
3 JONATHAN B. SUTIN, Judge


4
5 M. MONICA ZAMORA, Judge




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