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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-35671

 5 CALVIN ETCITTY,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 John A. Dean, Jr., District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Allison H. Jaramillo, Assistant Public Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VIGIL, Judge.

18   {1}    Defendant appeals his conviction for driving while intoxicated (DWI). We

19 issued a notice of proposed summary disposition proposing to affirm on November
 1 13, 2017, and Defendant has responded with a timely memorandum in opposition,

 2 which we have duly considered. We remain unpersuaded, and we therefore affirm.

 3 However, we remand for correction of a clerical error.

 4   {2}   Defendant first continues to argue that the district court violated his right to

 5 confrontation by allowing the State to introduce a recording of a 911 call into

 6 evidence. [MIO 5-10] “We review de novo a defendant’s contention that evidence

 7 admitted at trial violates the Confrontation Clause.” State v. Jim, 2014-NMCA-089,

 8 ¶ 16, 332 P.3d 870.

 9   {3}    Defendant objected on confrontation grounds to introduction of the 911

10 recording in which witness Kenneth Kendrick gave a description of the driver of the

11 vehicle. The district court ruled that Defendant’s confrontation rights were not

12 implicated by introduction of the recording because Mr. Kendrick was a witness at

13 trial. [RP 70-71] We agree. When a witness testifies at trial and is subject to cross-

14 examination, introduction of the witness’s prior statements does not violate the

15 Confrontation Clause. See State v. Johnson, 2010-NMSC-016, ¶ 51, 148 N.M. 50, 229

16 P.3d 523 (holding that the defendant’s confrontation rights were not violated by

17 introduction of a recording of a witness’s prior statements, despite the district court’s

18 finding that the witness was unavailable due to a purported lack of memory, where the

19 witness testified and was cross-examined at trial after the recording was played); see



                                               2
 1 also Crawford v. Washington, 541 U.S. 36, 59, n.9 (2004) (“[W]hen the declarant

 2 appears for cross-examination at trial, the Confrontation Clause places no constraints

 3 at all on the use of his prior testimonial statements.”). We therefore reject this

 4 assertion of error.

 5   {4}   Defendant next argues that the evidence was insufficient to show that he was

 6 driving while intoxicated. [MIO 10-15] “In reviewing the sufficiency of the evidence,

 7 we must view the evidence in the light most favorable to the guilty verdict, indulging

 8 all reasonable inferences and resolving all conflicts in the evidence in favor of the

 9 verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

10 “The reviewing court does not weigh the evidence or substitute its judgment for that

11 of the fact finder as long as there is sufficient evidence to support the verdict.” State

12 v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogated on other

13 grounds by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683.

14   {5}   In this case, the State instructed the jury on two alternative theories of DWI: (1)

15 driving with a blood alcohol content (BAC) of .08 or more, and (2) driving while

16 under the influence of intoxicating liquor (impaired to the slightest degree). [RP 95]

17 See NMSA 1978, § 66-8-102(B) (2016) (stating that is unlawful for a person who is

18 under the influence of any drug to a degree that renders the person incapable of safely

19 driving a vehicle to drive a vehicle within this state); Section 66-8-102(C)(1) (stating



                                                3
 1 that it is unlawful for a person to drive a vehicle in this state if the person has an

 2 alcohol concentration of eight one hundredths or more in the person’s blood or breath

 3 within three hours of driving the vehicle).

 4   {6}   The docketing statement and memorandum in opposition recite that Witness

 5 Kenneth Kendrick testified that he was driving when he saw the vehicle next to him

 6 run two red lights or stop signs. [DS 3; MIO 2; RP 74] He called 911 and followed the

 7 vehicle to a parking lot. [DS 3; MIO 2; RP 74] Mr. Kendrick saw one person exit the

 8 driver’s side and provided a description of the driver to the 911 operator. [DS 3; MIO

 9 2-3; RP 74] A recording of the 911 call was played to the jury. [RP 74]

10   {7}   Officer Benjamin Jemmett testified that he responded to the parking lot and

11 encountered Defendant, whose clothing matched the description of the driver’s

12 clothing given Mr. Kendrick. [DS 4; MIO 3; RP 75-76] Officer Jemmett also

13 determined that Defendant was one of the registered owners of the truck, and

14 Defendant said that the vehicle was his work truck. [RP 76; MIO 3] Officer Jemmett

15 testified that Defendant said he had been parked for an hour and had drunk one hour

16 before driving. [MIO 3] Officer Jemmett observed that Defendant had bloodshot

17 watery eyes, and Defendant refused to perform field sobriety tests (FSTs) or submit

18 to a chemical test of his breath. [MIO 3] Officer Jemmett transported Defendant to the

19 San Juan Regional Medical Center for a blood draw, and Defendant’s BAC was 0.24.



                                             4
 1 [RP 77-78] We believe that, based on this evidence, a reasonable jury could determine

 2 that Defendant operated a motor vehicle while intoxicated.

 3   {8}   Defendant continues to argue that the State’s evidence was insufficient to show

 4 that he was the driver and that another person drove the truck. [MIO 15] To the extent

 5 that Defendant argues that no one identified him in court as the driver, we note that

 6 circumstantial evidence is sufficient to show identity. See State v. McGee,

 7 2004-NMCA-014, ¶ 10, 135 N.M. 73, 84 P.3d 690 (discussing that circumstantial

 8 evidence was sufficient to identify the defendant as the person who made calls to the

 9 victim). Evidence that Defendant matched the description of the person seen exiting

10 the driver’s side and his refusal to perform FSTs or submit to a chemical test is

11 sufficient to permit the jury to conclude that Defendant was the driver. See State v.

12 Sanchez, 2001-NMCA-109, ¶ 9, 131 N.M. 355, 36 P.3d 446 (“The [s]tate can use

13 evidence of a driver’s refusal to consent to the field sobriety testing to create an

14 inference of the driver’s consciousness of guilt.”).

15   {9}   Defendant also argues that the evidence was insufficient to show that he was

16 drinking before he got to the parking lot. [MIO 15] However, we believe that the

17 evidence that Defendant ran two stop signs or lights, evidence that he refused to

18 submit to chemical testing or to perform FSTs, and his admission to Officer Jemmett

19 that he drank earlier, is sufficient to show that Defendant drank before driving. Id.



                                              5
 1   {10}   Defendant next argues that his right to a speedy trial was violated resulting in

 2 the loss of potential witnesses. [MIO16-17] Defendant did not preserve this issue

 3 below. [MIO 16] See See State v. Smith, 2016-NMSC-007, ¶ 57, 367 P.3d 420

 4 (reviewing an unpreserved speedy trial claim for fundamental error); see also State v.

 5 Rojo, 1999-NMSC-001, ¶¶ 50-51, 126 N.M. 438, 971 P.2d 829 (holding that when the

 6 defendant did not invoke a ruling on whether the State violated his constitutional right

 7 to a speedy trial, and the district court did not weigh the Barker factors, the argument

 8 was not preserved for appellate review). We therefore only review for fundamental

 9 error. See Rule 12-216(B)(2) NMRA (1993, recompiled and amended as Rule 12-321

10 NMRA effective Dec. 31, 2016) (providing appellate court discretion, as an exception

11 to the preservation rule, to review questions involving fundamental error). We do not

12 believe that fundamental error occurred in this case. The criminal information was

13 filed on July 17, 2014, and trial commenced on February 18, 2015, seven months later.

14 [RP 1, 69] A delay of seven months does not meet the threshold for presumptive

15 prejudice for any level of case. See State v. Flores, 2015-NMCA-081, ¶ 5, 355 P.3d

16 81 (“A delay of trial of twelve months is presumptively prejudicial in simple cases,

17 fifteen months in intermediate cases, and eighteen months in complex cases.”); see

18 also State v. Loya, 2011-NMCA-077, ¶ 11, 150 N.M. 373, 258 P.3d 1165 (rejecting

19 the defendant’s speedy trial claim when the length of delay was not presumptively



                                                6
 1 prejudicial). We also see no prejudice to Defendant in the delay of seven months.

 2 Defendant asserts that an exculpatory witness was lost, but there is nothing in the

 3 record to support that assertion. [MIO 17] See In re Ernesto M., Jr., 1996-NMCA-039,

 4 ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of

 5 prejudice.”). We therefore find no fundamental error with respect to Defendant’s

 6 speedy trial claim.

 7   {11}   Defendant next argues that he was denied effective assistance of counsel

 8 because his attorney: (1) failed to secure the testimony of necessary witnesses, (2)

 9 denied him his right to testify on his own behalf, (3) failed to ask question that would

10 have put his identification as the driver of the vehicle in doubt, and (4) failed to file

11 a motion to suppress the blood evidence seized by police. [MIO 18-20] “We review

12 claims of ineffective assistance of counsel de novo.” State v. Garcia,

13 2011-NMSC-003, ¶ 33, 149 N.M. 185, 246 P.3d 1057. “To establish a claim of

14 ineffective assistance of counsel, a defendant must show that his or her attorney failed

15 to exercise the skill of a reasonably competent attorney and that the defendant was

16 prejudiced by the failure.” State v. Reyes, 2002-NMSC-024, ¶ 46, 132 N.M. 576, 52

17 P.3d 948, abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-001, ¶ 36,

18 267 P.3d 806.




                                               7
 1   {12}   With respect to Defendant’s argument that his attorney failed to call witnesses,

 2 we note that the decision whether to call a witness is a matter of trial tactics, which we

 3 do not second guess on appeal. See State v. Trujillo, 2012-NMCA-112, ¶ 47, 289 P.3d

 4 238 (stating that the decision whether to call a witness of a matter of trial tactics and

 5 strategy within the control of trial counsel). Additionally, nothing in the record before

 6 this Court suggests that these unnamed witnesses had relevant or exculpatory evidence

 7 to offer. We therefore hold that Defendant has not shown that he was prejudiced by

 8 any failure to call witnesses. See State v. Hobbs, 2016-NMCA-006, ¶ 21, 363 P.3d

 9 1259 (rejecting the defendant’s argument that he received ineffective assistance of

10 counsel based on the failure to call a witness where there was no evidence in the

11 record that the outcome would have been different if counsel had called the witness).

12   {13}   Additionally, nothing in the record supports Defendant’s claim that he was

13 denied his right to testify due to counsel’s actions. See Jim, 2014-NMCA-089, ¶ 29

14 (rejecting the defendant’s claim that his counsel denied him his right to testify where

15 nothing in the record supported such a claim other than the defendant’s assertions).

16 We also reject Defendant’s argument that his counsel was ineffective for failing to ask

17 questions that would have put Defendant’s identification as the driver in doubt.

18 Although Defendant asserts that defense counsel asked no questions of the only

19 eyewitness, he has not indicated what questions should have been asked or how the



                                                8
 1 outcome would have been different had the unspecified questions been asked. See

 2 State v. Martinez, 2007-NMCA-160, ¶¶ 22-24, 143 N.M. 96, 173 P.3d 18 (requiring

 3 that an ineffective assistance claim be supported by a showing of how counsel’s

 4 performance prejudiced the defense). See generally In re Ernesto M., Jr.,

 5 1996-NMCA-039, ¶ 10 (“An assertion of prejudice is not a showing of prejudice.”);

 6 State v. Ortega, 2014-NMSC-017, ¶¶ 57, 59, 327 P.3d 1076 (rejecting claims of

 7 ineffective assistance of counsel because the arguments were speculative).

 8   {14}   Finally, we reject Defendant’s argument that he received ineffective assistance

 9 of counsel because his attorney did not file a motion to suppress the blood evidence

10 seized by police. [MIO 20] In order to show that a failure to file a motion resulted in

11 ineffective assistance of counsel, Defendant “must establish that the facts support the

12 motion to suppress and that a reasonably competent attorney could not have decided

13 that such a motion was unwarranted.” Patterson v. Lemaster, 2001-NMSC-013, ¶ 19,

14 130 N.M. 179, 21 P.3d 1032. To determine whether the facts support a motion to

15 suppress, we evaluate the facts present in the record. See State v. Torres,

16 2005-NMCA-070, ¶ 13, 137 N.M. 607, 113 P.3d 877. As discussed above, Officer

17 Jemmett testified at trial that he responded to a 911 report of a driver running two red

18 lights or stop signs. When he responded to the scene where the vehicle was parked,

19 he encountered Defendant whose clothing matched the description of the driver’s



                                               9
 1 clothing given to the 911 operator. [RP 76] Defendant’s eyes were bloodshot and

 2 watery, and his breath smelled of alcohol. [RP 75-76] Defendant admitted to drinking

 3 beer about an hour earlier. [RP 76] Additionally, the vehicle was registered to

 4 Defendant, and Defendant told Officer Jemmett that the vehicle was his work vehicle.

 5 Defendant also refused to perform FSTs. [RP 76] This evidence established probable

 6 cause to arrest Defendant for DWI. See Sanchez, 2001-NMCA-109, ¶¶ 8-9 (holding

 7 that evidence of a driver’s refusal to consent to field sobriety tests, along with other

 8 indicators such as odor of alcohol, babbling speech, and an admission to drinking,

 9 were sufficient to create an inference of impaired driving for the purpose of

10 establishing probable cause to make an arrest). As a result, we perceive no basis for

11 a suppression motion, and accordingly, counsel’s failure to file such a motion cannot

12 be characterized as unreasonable. State v. Chandler, 1995-NMCA-033, ¶ 35, 119

13 N.M. 727, 895 P.2d 249 (stating that trial counsel is not ineffective for failing to make

14 a motion that is not supported by the record).

15   {15}   We therefore hold that Defendant has not made a prima facie showing of

16 ineffective assistance of counsel. See State v. Jacobs, 2000-NMSC-026, ¶ 51, 129

17 N.M. 448, 10 P.3d 127 (stating that failure to prove either prong of the test defeats a

18 claim of ineffective assistance of counsel). “When the record on appeal does not

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



                                              10
 1 expressed its preference for resolution of the issue in habeas corpus proceedings over

 2 remand for an evidentiary hearing.” State v. Herrera, 2001-NMCA-073, ¶ 37, 131

 3 N.M. 22, 33 P.3d 22.

 4   {16}   As a final matter, Defendant asks that this Court correct a clerical error in the

 5 judgment and sentence. [MIO 23-24] The judgment and sentence recite that Defendant

 6 was convicted of aggravated DWI based on refusal to submit to chemical testing. [RP

 7 125] Although the State initially charged Defendant with aggravated DWI, it did not

 8 instruct the jury on that offense. [RP 1] Rather, the jury was given UJI 14-4501

 9 NMRA on simple DWI. [RP 95] Accordingly, it is clear that Defendant was convicted

10 of simple DWI, rather than aggravated DWI. We therefore agree with Defendant that

11 the judgment and sentence should be amended to reflect the proper conviction.

12   {17}   For these reasons, we affirm Defendant’s conviction. We also remand to the

13 district court for correction of the judgment and sentence.

14   {18}   IT IS SO ORDERED.


15                                           __________________________________
16                                           MICHAEL E. VIGIL, Judge




17 WE CONCUR:



                                               11
1 ____________________________
2 LINDA M. VANZI, Chief Judge



3 ___________________________
4 JULIE J. VARGAS, Judge




                                 12
