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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. 32,101

 5 ARTHUR J. MONTAÑO,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Lisa C. Schultz, District Judge

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

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                                 MEMORANDUM OPINION
 1 CASTILLO, Chief Judge.

 2        Arthur J. Montano (Defendant) appeals from the judgment and order partially

 3 suspending his sentence. [RP 137] In the docketing statement, Defendant raises two

 4 issues: (1) whether the district court erred in denying Defendant’s motions for a

 5 directed verdict on Counts 1, 2, and 3; and (2) whether trial defense counsel was

 6 ineffective for failing to move to sever Count 3, driving while license suspended or

 7 revoked, from the other charges. [DS 4] This Court’s calendar notice proposed

 8 summary affirmance. [Ct. App. File, CN1] Defendant has filed a memorandum in

 9 opposition to the calendar notice and a motion to amend the docketing statement.

10 [MIO 1] After due consideration, however, we deny Defendant’s motion to amend

11 because, as we discuss below, the new issue is not viable on direct appeal, see State

12 v. Moore, 109 N.M. 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989) (issues sought

13 to be presented must be viable), overruled on other grounds by State v. Salgado, 112

14 N.M. 537, 817 P.2d 730 (Ct. App. 1991). We affirm Defendant’s convictions.

15 DISCUSSION

16 Defendant’s Motion for a Directed Verdict

17        In the memorandum, Defendant first continues to challenge his conviction for

18 driving on a suspended or revoked license. [MIO 6-7] Defendant relies on State v.

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


                                             2
 1 P.2d 1 (Ct. App. 1985), to support his contentions. [MIO 7] We are not persuaded,

 2 however, that the State failed to present sufficient evidence to support this conviction.

 3 The State introduced and the district court admitted—without objection—Motor

 4 Vehicle Department records reflecting that Defendant’s license was revoked during

 5 the events at issue, Defendant admitted that he drove and parked his car on the date

 6 in issue, Defendant was arrested for reckless driving and aggravated DWI on the date

 7 in issue, and no evidence was presented that Defendant was unaware that his license

 8 was revoked. [MIO 7] For the reasons set forth in the calendar notice and this

 9 memorandum opinion, we affirm Defendant’s conviction for driving on a suspended

10 or revoked driver’s license.

11         In the memorandum, Defendant also continues to challenge his convictions for

12 aggravated DWI and reckless driving, contending that the State did not prove beyond

13 a reasonable doubt that he was the person who drove his car from the bowling alley,

14 ran a red light, and swerved into another lane of traffic. [MIO 7] As we discussed in

15 the first calendar notice, at the jury trial the State presented the testimony of an officer

16 who observed Defendant run a red light and swerve across the traffic lane in Las

17 Cruces, New Mexico, on or about January 12, 2012. [DS 3] After engaging his

18 emergency equipment, the officer pulled Defendant’s car over several blocks later.

19 [Id.] The officer testified that Defendant smelled of alcohol; he had red, blood-shot,


                                                3
 1 watery eyes, and his speech was slurred. [Id.] The officer asked Defendant to step out

 2 of the vehicle to perform field sobriety tests that Defendant could not safely perform.

 3 [Id.] Defendant was arrested and taken to the police department where he was read

 4 the New Mexico Implied Consent Act. [Id.] Defendant’s breath alcohol test results

 5 indicated that Defendant had an alcohol concentration of .16 grams or more in two

 6 hundred ten liters of breath. [Id.] [See RP 95, showing the intoxilizer report admitted

 7 into evidence at trial]. We hold that the State presented substantial evidence to

 8 support Defendant’s convictions for aggravated DWI and reckless driving.

 9        In the memorandum, however, Defendant states that he testified to an entirely

10 different course of events that do not support his conviction. [MIO 9-10] Defendant

11 testified that he drank at the bowling alley and asked Officer Herrera for a ride home.

12 [MIO 9] Defendant then stated that he vomited on Officer Herrera’s shoes, which

13 caused the officer to orchestrate Defendant’s arrest for DWI. [Id.] Defendant stated

14 that another officer actually drove Defendant’s vehicle, ran the red light, and swerved

15 into the other traffic lane. [Id.] After the stop, Officer Herrera put Defendant in the

16 driver’s seat and then aimed the camera at Defendant in the driver’s seat to make it

17 look like Defendant was the reckless, drunken driver. [MIO 9-10]

18        We note, however, that the jury as factfinder rejected Defendant’s version of

19 events, which it is entitled to do. State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M.


                                              4
 1 686, 986 P.2d 482 (recognizing that it is for the factfinder to resolve any conflict in

 2 the testimony of the witnesses and to determine where the weight and credibility lay);

 3 see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary

 4 evidence supporting acquittal does not provide a basis for reversal because the jury

 5 is free to reject [the d]efendant’s version of the facts.”). As the reviewing court, we

 6 do not reweigh the evidence or substitute our judgment for that of the fact finder as

 7 long as there is sufficient evidence to support the verdict. State v. Mora, 1997-

 8 NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789.

 9        We affirm the district court’s decision to deny Defendant’s motion for a

10 directed verdict, and we affirm Defendant’s convictions.

11 Ineffective Assistance of Counsel

12        Defendant also contends that his trial counsel was ineffective for failing to

13 move to sever Count 4—driving with a suspended or revoked license. [DS 4] In the

14 motion to amend, Defendant further contends that his trial counsel was ineffective for

15 not arguing that Officer Herrera’s failure to obtain two consecutive breath test results

16 violated Defendant’s due process rights. [MIO 10-14]

17        We review claims of ineffective assistance of counsel de novo. Duncan v.

18 Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993). Under the Sixth

19 Amendment, criminal defendants are entitled to “reasonably effective” assistance of


                                              5
 1 counsel. State v. Schoonmaker, 2008-NMSC-010, ¶ 29, 143 N.M. 373, 176 P.3d

 2 1105. To state a claim for ineffective assistance of counsel, a defendant must establish

 3 that (1) counsel’s performance was deficient, and (2) such deficiency resulted in

 4 prejudice against the defendant. State v. Gonzales, 2007-NMSC-059, ¶ 14, 143 N.M.

 5 25, 172 P.3d 162. There is a strong presumption that trial counsel’s conduct falls

 6 within the wide range of reasonable professional assistance. State v. Hunter,

 7 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168. An appellate court will not

 8 second guess counsel’s strategic judgment unless the conduct does not conform with

 9 “an objective standard of reasonableness.” State v. Bernal, 2006-NMSC-050, ¶ 32,

10 140 N.M. 644, 146 P.3d 289 (internal quotation marks and citation omitted). Thus,

11 any “sound” trial tactic or strategy withstands review. See Hunter, 2006-NMSC-043,

12 ¶ 13 (stating that the defendant must overcome the presumption that the challenged

13 action might be considered sound trial strategy).

14        In State v. Gallegos, our Supreme Court clarified that even though offenses are

15 properly joined, a trial court abuses its discretion in failing to sever when there is

16 prejudice to the accused. 2007-NMSC-007, ¶ 16, 141 N.M. 185, 152 P.3d 828; see

17 Rule 5-203(A) and (C) NMRA (joinder and severance). Rule 5-203(C) does not come

18 into play unless and until there is a proper joinder pursuant to Rule 5-203(A).

19 Gallegos, 2007-NMSC-007, ¶ 16.


                                              6
 1        In this case, we hold that the State appropriately joined the driving while

 2 intoxicated charges (Count 1, aggravated DWI; Count 2, reckless driving; and Count

 3 4, open container) with Count 3, driving on a revoked license, because all charges “are

 4 based on the same conduct or on a series of acts either connected together or

 5 constituting parts of a single scheme or plan.” Rule 5-203(A)(2). That is, all the

 6 charges relate to Defendant’s conduct in driving a motor vehicle in Las Cruces, New

 7 Mexico, on January 12, 2011. Thus, we cannot say that trial counsel was ineffective

 8 on direct appeal for failing to move to sever the driving on a revoked license charge

 9 from the others. See, e.g., State v. Chandler, 119 N.M. 727, 735, 895 P.2d 249, 257

10 (Ct. App. 1995) (stating that trial counsel is not ineffective for failure to make a

11 motion that is not supported by the record), modified on other grounds by State v.

12 Vargas, 2007-NMCA-006, 140 N.M. 864, 149 P.3d 961.

13        In the memorandum, Defendant points out that the State Laboratory Division

14 regulations provide for the breath test operator to “make a good faith attempt to collect

15 and analyze at least two samples of breath.” [MIO 12-13] The admitted test showed

16 one breath test, having a .21 result. [MIO 12] Trial defense counsel did not object to

17 admission of the one test result, and Defendant contends he received ineffective

18 assistance for the failure to do so. We are not persuaded that counsel was ineffective

19 for failing to object to the admission of one test result. First, we can well imagine that


                                               7
 1 trial counsel decided not to object because the test result showed a level of

 2 intoxication well over the .16 limit for aggravated driving and trial counsel did not

 3 want to draw further attention to it. Second, as we discussed in Issue 1, Defendant’s

 4 trial defense strategy did not concentrate on whether Defendant was intoxicated or the

 5 level of his intoxication, but on Defendant’s assertions that officers orchestrated

 6 Defendant’s arrest for reckless driving and aggravated DWI as pay back for Defendant

 7 asking for a ride and vomiting on the officer’s shoes. [MIO 9-10] Defense trial

 8 decisions do not demonstrate ineffective assistance of counsel on direct appeal.

 9        Further, while Defendant asserts that trial counsel was ineffective for not

10 moving to sever the driving on a revoked license charge from the others and was

11 ineffective for failing to object to admission of one rather than two breath test results,

12 Defendant does not indicate how counsel’s alleged failures prejudiced him or how the

13 outcome of the trial would have been different. See State v. Hester, 1999-NMSC-020,

14 ¶ 9, 127 N.M. 218, 979 P.2d 729 (stating that the burden of proving ineffective

15 assistance of counsel is on the defendant); see also State v. Aker, 2005-NMCA-063,

16 ¶ 34, 137 N.M. 561, 113 P.3d 384 (stating that to establish a prima facie case of

17 ineffective assistance of counsel, Defendant must show that (1) counsel’s performance

18 was deficient in that it fell below an objective standard of reasonableness; and (2)

19 Defendant suffered prejudice in that there is a reasonable probability that, but for


                                               8
1 counsel’s unprofessional errors, the result of the proceeding would have been

2 different).

3        In this direct appeal, we affirm Defendant’s convictions. See State v. Grogan,

4 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (expressing a preference for

5 habeas corpus proceedings to address ineffective assistance of counsel claims).

6        IT IS SO ORDERED.



7                                        __________________________________
8                                        CELIA FOY CASTILLO, Chief Judge

9 WE CONCUR:



10 __________________________________
11 CYNTHIA A. FRY, Judge



12 __________________________________
13 J. MILES HANISEE, Judge




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