 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                                      NO. 29,068

 5 SABINO CALVILLO,

 6       Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Jane Shuler Gray, District Judge

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

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Eleanor Brogan, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                             MEMORANDUM OPINION

17 CASTILLO, Judge.

18       Defendant appeals his convictions for possession of a controlled substance and

19 battery on a peace officer. We issued a notice of proposed summary disposition,
 1 proposing to affirm. Defendant has filed a combined motion to amend the docketing

 2 statement and memorandum in opposition. After due consideration, we remain

 3 unpersuaded by Defendant’s assertions of error. We therefore affirm.

 4        We will begin with the motion to amend. Such a motion will only be granted

 5 upon a showing that the supplemental issue is viable. See State v. Moore, 109 N.M.

 6 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989) (providing that issues sought to be

 7 presented must be viable), superseded by rule on other grounds as stated in State v.

 8 Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991). By his motion to amend,

 9 Defendant seeks to advance a claim of ineffective assistance of counsel. [MIO 1, 4-

10 10] For the reasons that follow, we conclude that this issue is not viable. We

11 therefore deny the motion.

12        In order to establish any entitlement to relief based on ineffective assistance of

13 counsel, Defendant must make a prima facie showing by demonstrating that: (1)

14 counsel’s performance fell below that of a reasonably competent attorney; (2) no

15 plausible, rational strategy or tactic explains counsel’s conduct; and (3) counsel’s

16 apparent failings were prejudicial to the defense.             See State v. Herrera,

17 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (setting out the factors for a prima

18 facie case of ineffective assistance).

19        Defendant’s claim of ineffective assistance is based on trial counsel’s failure


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 1 to file a motion. [MIO 4-10] Specifically, Defendant contends that he was seized in

 2 violation of his constitutional rights and that all of the fruits of that seizure should

 3 have been suppressed. [MIO 4-10]

 4         The sparsity of information presently available to the Court is a significant

 5 impediment. The pertinent historical events do not appear to have been developed on

 6 the record below. See generally State v. Powers, 111 N.M. 10, 12, 800 P.2d 1067,

 7 1069 (Ct. App. 1990) (observing that an insufficient factual basis precludes appellate

 8 review of a claim of ineffective assistance of counsel). However, the record and

 9 Defendant’s submissions to this Court provide some information about the events

10 leading up to Defendant’s arrest, in light of which we shall endeavor to briefly address

11 the merits. See generally Garcia Lopez v. State, 107 N.M. 450, 450-51, 760 P.2d 142,

12 142-43 (1988) (“When a case is assigned to summary calendar, the facts in the

13 docketing statement are accepted as true unless contested.”); State v. Torres, 2005-

14 NMCA-070, ¶ 13, 137 N.M. 607, 113 P.3d 877 (“To determine whether the facts

15 support [a] motion, we evaluate the facts present in the record.”).

16        In brief, two police officers observed Defendant riding a bicycle one evening.

17 [MIO 2] When Defendant approached a residence, the officers stopped nearby and

18 asked his name. [RP 7, 24] Defendant gave his name and indicated that he was there

19 to visit a friend. [MIO 7; RP 26] The officers then departed, the exchange having


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 1 taken no longer than half a minute. [RP 22] The officers did not activate the lights,

 2 get out of the patrol car, or threaten Defendant in any way. [RP 21-22, 26] After

 3 departing, the officers called dispatch with Defendant’s name and learned that he had

 4 a possible outstanding warrant. [MIO 3] The officers therefore returned to the

 5 vicinity and apprehended Defendant. [MIO 3]

 6        Defendant contends that the initial encounter, in the course of which the officers

 7 asked his name and what he was doing, amounted to an unreasonable seizure of his

 8 person, such that all ensuing evidence should have been suppressed. [MIO 4-10]

 9 Trial counsel’s failure to file a motion to this effect is the basis for Defendant’s claim

10 of ineffective assistance. [MIO 4-10]

11        “[A] seizure subject to Fourth Amendment scrutiny does not occur every time

12 a police officer approaches a citizen.” State v. Jason L., 2000-NMSC-018, ¶ 14, 129

13 N.M. 119, 2 P.3d 856 (alteration in original) (internal quotation marks and citation

14 omitted). “An officer may approach a person to ask questions . . . without any basis

15 for suspecting that particular individual, as long as the police do not convey a message

16 that compliance with their requests is required.” State v. Williams, 2006-NMCA-062,

17 ¶ 11, 139 N.M. 578, 136 P.3d 579 (internal quotation marks and citations omitted).

18 In order to determine whether such a message was conveyed, our

19 Supreme Court has noted that the following circumstances may be indicative: (1) “the


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 1 threatening presence of several officers,” (2) “the display of a weapon by an officer,”

 2 (3) “some physical touching of the person of the citizen,” or (4) “the use of language

 3 or tone of voice indicating that compliance with the officer’s request might be

 4 compelled.” Jason L., 2000-NMSC-018, ¶ 16 (internal quotation marks and citation

 5 omitted).

 6        In this case, the record before us does not indicate that any of the foregoing

 7 facts were present. Nor do we find any other indication that the officers conveyed a

 8 message that compliance was required. As a result, trial counsel could reasonably

 9 have concluded that a motion to suppress would have been unwarranted because

10 Defendant was not seized in the course of the initial encounter. We therefore

11 conclude that Defendant has failed to make a prima facie showing of ineffective

12 assistance of counsel. See generally State v. Sanchez, 98 N.M. 781, 783, 652 P.2d

13 1232, 1234 (Ct. App. 1982) (observing that failure to file a motion which lacks merit

14 is not ineffective assistance).

15        In reliance on the case of State v. Soto, 2008-NMCA-032, ¶ 26, 143 N.M. 631,

16 179 P.3d 1239, cert. granted, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674,

17 Defendant contends that the officers’ approach in a patrol car, when he was riding a

18 bicycle, constituted a seizure. [MIO 4-10] However, unlike Soto, the initial encounter

19 did not occur in the early hours of the morning in an isolated location, Defendant did


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 1 not stop in response to the officers’ approach, and the officers did not request or retain

 2 Defendant’s identification. See id. ¶¶ 12-13, 15. As a result, Soto is readily

 3 distinguishable.

 4        In light of the foregoing, we conclude that Defendant has failed to make a prima

 5 facie showing of ineffective assistance of counsel. We therefore deny Defendant’s

 6 motion to amend. See generally State v. Ibarra, 116 N.M. 486, 490, 864 P.2d 302,

 7 306 (Ct. App. 1993) (observing that a motion to amend will be denied if the issue is

 8 not viable). To the extent that Defendant may wish to pursue the matter further, we

 9 suggest that habeas proceedings would be the appropriate avenue. See generally State

10 v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal

11 that provides a basis for remanding to the trial court for an evidentiary hearing on

12 ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition

13 for writ of habeas corpus[.]”); State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M.

14 476, 927 P.2d 31 (“This Court has expressed its preference for habeas corpus

15 proceedings over remand when the record on appeal does not establish a prima facie

16 case of ineffective assistance of counsel.”).

17        Defendant has also renewed his challenge to the sufficiency of the evidence to

18 support his convictions. [MIO 10-13] We remain unpersuaded. As we observed in

19 the notice of proposed summary disposition, ample direct and indirect evidence was


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 1 presented to support Defendant’s convictions. See generally State v. Sutphin, 107

 2 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (observing that direct and circumstantial

 3 evidence must be viewed in the light most favorable to the state, resolving all conflicts

 4 therein and indulging all permissible inferences therefrom in favor of the verdict).

 5        To very briefly reiterate, the State called two officers who testified that they

 6 arrested Defendant on an outstanding warrant. [DS 2-3] While en route to the

 7 detention center, the officers observed Defendant attempting to consume and/or

 8 destroy a quantity of cocaine. [DS 3] After removing Defendant from the patrol

 9 vehicle and collecting the remains of the cocaine from the back seat, the officers

10 attempted to re-secure Defendant’s handcuffs. [DS 4] Defendant refused to cooperate

11 and became aggressive. [DS 4] He struggled against the officers, evidently kicking

12 and striking them in the process, such that the officers were eventually compelled to

13 use a taser in order to subdue him. [DS 4] This testimony satisfied the State’s burden

14 of proof with respect to each of the elements of all of the offenses for which

15 Defendant was convicted. See generally NMSA 1978, § 30-22-24 (1971) (describing

16 the offense of battery on a peace officer); NMSA 1978, § 30-31-23 (2005) (describing

17 the offense of possession of a controlled substance); and see, e.g., State v. Franco,

18 2005-NMSC-013, ¶¶ 8-10, 137 N.M. 447, 112 P.3d 1104 (observing that the jury

19 could infer that the defendant exercised control over cocaine and knew what it was or


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1 believed it to be some other controlled substance based on evidence that she possessed

2 it and attempted to destroy it before police could seize it); State v. Lopez,

3 2008-NMCA-111, ¶¶ 2-6, 15, 144 N.M. 705, 191 P.3d 563 (upholding convictions for

4 battery on a peace officer under analogous circumstances).

5        For the reasons stated above and in the notice of proposed summary disposition,

6 we affirm.

7        IT IS SO ORDERED.



8                                               ________________________________
9                                               CELIA FOY CASTILLO, Judge

10 WE CONCUR:



11 _________________________________
12 MICHAEL D. BUSTAMANTE, Judge



13 _________________________________
14 LINDA M. VANZI, Judge




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