     This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
     Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
     also note that this electronic memorandum opinion may contain computer-generated errors or other
     deviations from the official paper version filed by the Court of Appeals and does not include the
     filing date.

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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                  No. 31,747

 5 PETE TORRES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
 8 J.C. Robinson, District Judge

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

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender
13 Carlos Ruiz de la Torre, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 VIGIL, Judge.

18          Defendant appeals his convictions for aggravated driving while under the

19 influence (DUI) and resisting, evading, or obstructing a police officer. We issued a
 1 notice of summary disposition proposing to affirm on March 9, 2012. Defendant has

 2 filed a timely memorandum in opposition and a motion to amend the docketing

 3 statement, which we have duly considered. Because we remain unpersuaded, we

 4 affirm Defendant’s convictions.

 5        We first address Defendant’s argument that the evidence was insufficient to

 6 support his conviction for aggravated DUI. “In reviewing the sufficiency of the

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

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

 9 of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998

10 P.2d 176. Substantial evidence is “‘such relevant evidence as a reasonable mind

11 might accept as adequate to support a conclusion.’” State v. Salgado, 1999-NMSC-

12 008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (quoting State v. Baca, 1997-NMSC-059, ¶

13 14, 124 N.M. 333, 950 P.2d 776).

14         In this case, there was evidence to establish that Defendant was driving his car,

15 had slurred speech, had an odor of alcohol, and had bloodshot, watery eyes.

16 Defendant refused to take any field sobriety tests, refused to blow into a breath alcohol

17 machine after being read the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112

18 (1978, as amended through 2007), and refused to have his blood drawn. [RP 53-54]

19 We believe that such evidence is sufficient to sustain his conviction for aggravated

20 DUI. See State v. Loya, 2011-NMCA-077, ¶¶ 18-20, 150 N.M.373, 258 P.3d 1165

                                               2
 1 (holding that sufficient evidence supported a conviction for aggravated DUI where the

 2 defendant drove with bloodshot, watery eyes, had slurred speech and an odor of

 3 alcohol, the defendant admitted to drinking, and the defendant refused to submit to

 4 chemical testing after being read the Implied Consent Act); UJI 14-4501 NMRA

 5 (requiring proof that the defendant drove and “as a result of drinking liquor,

 6 [Defendant] was less able to the slightest degree, either mentally or physically, or

 7 both, to exercise the clear judgment and steady hand necessary to handle a vehicle

 8 with safety to the person and the public” to prove DUI); NMSA 1978, §66-8-102(D)

 9 (3) (2011) (defining aggravated DUI as “refusing to submit to chemical testing, as

10 provided for in the Implied Consent Act, and in the judgment of the court, based upon

11 evidence of intoxication presented to the court, the driver was under the influence of

12 intoxicating liquor or drugs).

13        In his memorandum in opposition, Defendant first states that he was on

14 prescription medication for pain. [MIO 3] However, as this evidence was not

15 introduced at trial we do not consider it. Defendant also argues that there was no

16 evidence of bad driving. [MIO 7] However, Defendant cites to no authority to suggest

17 that evidence of bad driving is necessary to prove aggravated DUI. See In re Adoption

18 of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (stating that an appellate

19 court will not consider an issue if no authority is cited in support of the issue, as

20 absent cited authority to support an argument, we assume no such authority exists).

                                             3
 1 Defendant also argues that he complied with the officer’s instruction to provide his

 2 license, registration and proof of insurance as directed and that there are other possible

 3 explanations for his bloodshot, watery eyes and that the odor of alcohol alone is

 4 insufficient to convict him of DUI. [MIO 7]            However, “[c]ontrary evidence

 5 supporting acquittal does not provide a basis for reversal because the jury is free to

 6 reject [a defendant’s] version of the facts.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126

 7 N.M. 438, 971 P.2d 829.

 8        Defendant next argues that he was merely moving his car from one space in a

 9 parking lot to an adjacent space, and he had no intent to operate a motor vehicle. [MIO

10 8] Defendant argues that this situation is analogous to one in which a citizen is

11 intoxicated and sleeping in his vehicle and can establish a lack of intent to operate a

12 motor vehicle as a defense. [MIO 8] See State v. Sims, 2010-NMSC-027, ¶¶ 37-35,

13 148 N.M. 330, 236 P.3d 642 (holding that “actual physical control” requires evidence

14 of more than mere potential or possible future control and there must be a general

15 intent to drive and reversing the defendant’s conviction where the evidence only

16 established that he was asleep in the vehicle with the car keys on the passenger seat);

17 State v. Mailman, 2010-NMSC-036, ¶ 21, 148 N.M. 702, 242 P.3d 269 (holding that

18 the defendant could not be convicted of DUI where the vehicle was inoperable and he

19 was therefore not in actual physical control of the vehicle). We disagree. Unlike the

20 facts in Sims and Mailman, in this case there was evidence that Defendant actually

                                               4
 1 operated the motor vehicle. Defendant’s act of moving the car in the parking lot

 2 between spaces constitutes actual physical control of a motor vehicle. We therefore

 3 reject his argument that this case is analogous to Sims and Mailman. For these

 4 reasons, we affirm Defendant’s conviction for aggravated DUI.

 5        We now turn to the issues raised in Defendant’s motion to amend the docketing

 6 statement. Such a motion will only be granted upon a showing of viablility. See State

 7 v. Moore, 109 N.M. 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989) (providing that

 8 issues sought to be presented must be viable). Defendant first argues that the evidence

 9 was insufficient to support his conviction for resisting, evading, or obstructing a

10 police officer. In order to convict Defendant of resisting, evading, or obstructing an

11 officer, the jury was instructed that it had to find evidence beyond a reasonable doubt

12 that: (1) Corporal Javier Peru was a peace officer in the lawful discharge of duty; (2)

13 Defendant knew that Corporal Peru was a peace officer, (3) Defendant resisted or

14 abused Corporal Peru in the lawful discharge of his duties, and (4) this happened in

15 New Mexico on or about August 22, 2010. [RP 76] Based on the facts recited in the

16 docketing statement and memorandum in opposition, there was evidence that

17 Defendant refused repeated instructions by the officer to exit his vehicle during his

18 investigation of Defendant for DUI. We believe this evidence is sufficient to support

19 Defendant’s conviction. See NMSA 1978, §30-22-1(D) (1981) (defining resisting,



                                              5
 1 evading, or obstructing an officer as resisting or abusing a peace officer in the lawful

 2 discharge of his duties).

 3        Defendant argues that the only evidence supporting his conviction was his

 4 refusal to comply with the terms of the Implied Consent Act. [MIO 8] However, we

 5 do not believe that his conviction was based on his refusal to consent to breath and

 6 blood alcohol tests, but rather his refusal to exit his vehicle and perform field sobriety

 7 tests while the officer was attempting to conduct a DUI investigation. We therefore

 8 reject this argument. Defendant also argues that he was not under arrest at the time

 9 the officer told him to exit his vehicle and take the field sobriety tests. [MIO 8-9]

10 However, Defendant cites to no authority to suggest that a conviction for resisting,

11 evading, or obstructing an officer requires that a suspect be placed under arrest first.

12 See In re Adoption of Doe, 100 N.M. at 765, 676 P.2d at 1330 (stating that an

13 appellate court will not consider an issue if no authority is cited in support of the

14 issue, as absent cited authority to support an argument, we assume no such authority

15 exists); see also §30-22-1 (defining the elements of resisting, evading, or obstructing

16 an officer). Finally, Defendant argues that since he was planning to potentially spend

17 the night in his vehicle, the vehicle was like his home, and his refusal to exit cannot

18 form the basis for conviction. [MIO 9] Again, Defendant cites to no authority in

19 support of this argument, and we therefore do not consider it. See In re Adoption of

20 Doe, 100 N.M. at 765, 676 P.2d at 1330 (stating that an appellate court will not

                                               6
 1 consider an issue if no authority is cited in support of the issue, as absent cited

 2 authority to support an argument, we assume no such authority exists).

 3        Defendant also argues in his motion to amend the docketing statement that he

 4 received ineffective assistance of counsel. There is a two fold test for proving

 5 ineffective assistance of counsel; the defendant must show (1) that counsel’s

 6 performance fell below that of a reasonably competent attorney, and (2) that defendant

 7 was prejudiced by the deficient performance. See State v. Hester, 1999-NMSC-020,

 8 ¶ 9, 127 N.M. 218, 979 P.2d 729. The burden of proof is on the defendant to prove

 9 both prongs. Id. “When an ineffective assistance claim is first raised on direct appeal,

10 we evaluate the facts that are part of the record. If facts necessary to a full

11 determination are not part of the record, an ineffective assistance claim is more

12 properly brought through a habeas corpus petition, although an appellate court may

13 remand a case for an evidentiary hearing if the defendant makes a prima facie case of

14 ineffective assistance.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54

15 P.3d 61 (citing State v. Swavola, 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct. App.

16 1992)).

17        Defendant asserts that his counsel was ineffective in a variety of ways.

18 Defendant first claims that his counsel failed to introduce evidence that the arresting

19 officer had prior convictions for domestic violence and that he had been removed from

20 the police force at some point and lost his officer certification credentials. [MIO 10]


                                              7
 1 However, there is nothing in the record to support these claims. See State v. Powers,

 2 111 N.M. 10, 12, 800 P.2d 1067, 1069 (Ct. App. 1990) (observing that an insufficient

 3 factual basis precludes appellate review of a claim of ineffective assistance of

 4 counsel); and see, e.g., State v. Hernandez, 115 N.M. 6, 18, 846 P.2d 312, 324 (1993)

 5 (rejecting a claim of ineffective assistance of counsel, where the defendant failed to

 6 demonstrate that favorable evidence could have been presented).

 7 Defendant also argues that his attorney did not call his doctor to establish that the

 8 interaction between the medications he had been prescribed contributed to his

 9 impairment. Again, there is nothing in the record to support Defendant’s claims

10 regarding what his doctor would have testified to and whether that testimony would

11 have been favorable. See State v. Dartez, 1998-NMCA-009, ¶ 27,124 N.M. 455, 952

12 P.2d 450 (holding that a defendant must demonstrate in the record what the beneficial

13 testimony would have been and thereby demonstrate prejudice). Accordingly,

14 Defendant has failed to establish a prima facie case of ineffective assistance of counsel

15 on these bases.

16        Defendant also argues that his counsel failed to file a motion to suppress on the

17 basis that the officer lacked reasonable suspicion to approach his vehicle and

18 conducted a pretextual traffic stop. [MIO 10] In order to establish that this was below

19 the standard of a reasonably competent attorney, Defendant has the burden to establish

20 that the facts support the motion to suppress and that a reasonably competent attorney


                                               8
 1 could not have decided that such a motion was unwarranted. See State v. Martinez,

 2 1996-NMCA-109, ¶ 33, 122 N.M. 476, 927 P.2d 31. To determine whether the facts

 3 support a motion to suppress, we evaluate the facts present in the record. See Roybal,

 4 2002-NMSC-027, ¶ 19 (stating that “[i]f facts necessary to a full determination are not

 5 part of the record, an ineffective assistance claim is more properly brought through a

 6 habeas corpus petition”).

 7        In this case, the record indicates that the officer initially approached

 8 Defendant’s car because he heard what he believed to be an argument between

 9 Defendant and another person. [MIO 3; RP 53] Once he approached the car, he

10 observed Defendant in the driver’s seat with bloodshot, watery eyes and an odor of

11 alcohol. We see nothing in these facts to give rise to a motion to suppress. See State

12 v. Chandler, 119 N.M. 727, 735, 895 P.2d 249, 257 (Ct. App. 1995) (stating that trial

13 counsel is not ineffective for failing to make a motion that is not supported by the

14 record). Defendant argues that the officer did not observe any driving violation.

15        Additionally, Defendant does not point to any facts in the record that would

16 constitute a pretextual traffic stop. Defendant states that the officer’s claim that he

17 initially approached the vehicle because he heard what he thought was an argument

18 between Defendant and another person was untrue. However, the record before us

19 does not support this contention. For these reasons, we believe that Defendant has

20 failed to establish that a motion to suppress was supported by the facts in the record.


                                              9
 1 See State v. Torres, 2005-NMCA-070, ¶ 17, 137 N.M. 607, 113 P.3d 877 (rejecting

 2 the defendant’s claim that he received ineffective assistance of counsel on the basis

 3 of his attorney’s failure to file a suppression motion where the facts in the record did

 4 not support a suppression motion). Although Defendant has failed to establish a claim

 5 of ineffective assistance of counsel, we reach this conclusion without prejudice to

 6 Defendant’s pursuit of habeas corpus proceedings on this issue and the development

 7 of a factual record. See State v. Gonzales, 2007-NMSC-059, ¶ 16, 143 N.M. 25, 172

 8 P.3d 162.

 9        For these reasons, we affirm Defendant’s convictions.

10        IT IS SO ORDERED.


11                                                 _______________________________
12                                                 MICHAEL E. VIGIL, Judge

13 WE CONCUR:



14 _________________________________
15 CYNTHIA A. FRY, Judge



16 _________________________________
17 TIMOTHY L. GARCIA, Judge




                                              10
