 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 31,138

10 KENNETH POLSON,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
13 James Waylon Counts, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Jacqueline L. Cooper, Acting Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant


21                                 MEMORANDUM OPINION

22 VANZI, Judge.
 1        Defendant appeals from the judgment and sentence convicting him after a jury

 2 trial of robbery, larceny, aggravated battery, and criminal damage to property. [RP

 3 227] Initially, Defendant challenged the sufficiency of the evidence to support his

 4 convictions. [DS 4] The calendar notice proposed summary affirmance. [Ct. App.

 5 File, CN1] In the memorandum in opposition and a motion to amend the docketing

 6 statement, Defendant also argues that defense counsel was ineffective and that his

 7 double jeopardy rights were violated. We deny Defendant’s motion to amend the

 8 docketing statement because, as discussed in this opinion, we find the new issues not

 9 viable. See State v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994)

10 (denying the defendant’s motion to amend the docketing statement when the argument

11 offered in support thereof is not viable). We affirm Defendant’s convictions.

12 DISCUSSION

13 Sufficiency of the Evidence

14        Defendant continues to contend that the jury could not have found sufficient

15 evidence that Defendant was guilty on all counts beyond a reasonable doubt. [MIO

16 6-11] We affirm.

17        The memorandum confirms that the jury heard Williamson testify that

18 Defendant forced his way into the home, beat him, and stole and damaged his

19 property. [MIO 9-10] Williamson also identified his injuries and the damage to the


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 1 house and property in photographs taken by Officer Hanker. [Id.] The officer

 2 testified that he took statements from Williamson and Defendant, who gave

 3 conflicting versions of the events. [MIO 10] As we discussed in the calendar notice,

 4 the jury was properly instructed on the elements of the offenses. [Ct. App. File, CN1,

 5 3-4] The jury, as fact finder in the case, believed Williamson’s version of the facts

 6 over Defendant’s. State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d

 7 661 (stating that substantial evidence is “such relevant evidence as a reasonable mind

 8 might accept as adequate to support a conclusion” (internal quotation marks and

 9 citation omitted)); see also State v. Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145

10 P.3d 86 (discussing that the appellate court views the evidence in the light most

11 favorable to the verdict, resolving all conflicts and indulging all reasonable inferences

12 in favor of the verdict).

13        To the extent that Defendant’s witnesses presented conflicting evidence, it is

14 well-established that “[c]ontrary evidence supporting acquittal does not provide a

15 basis for reversal because the jury is free to reject Defendant’s version of the facts.”

16 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Moreover, “[t]he

17 reviewing court does not weigh the evidence or substitute its judgment for that of the

18 fact finder as long as there is sufficient evidence to support the verdict.” State v.

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


                                               3
 1 grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d

 2 683.

 3        We hold that the State presented testimony and evidence that the jury could

 4 reasonably find supported each of the elements of the charged crimes beyond a

 5 reasonable doubt. Accordingly, we affirm Defendant’s convictions because they are

 6 based on substantial evidence.

 7 Ineffective Assistance of Counsel

 8        In the motion to amend, Defendant argues that his counsel was ineffective for

 9 the following reasons: (1) defense counsel failed to recuse Judge Counts on conflict

10 of interest grounds; (2) he did not subpoena a number of witnesses that Defendant

11 listed for him; (3) the three witnesses defense counsel did call did not give the

12 complete picture of what happened and why; (4) defense counsel did not introduce

13 pawn shop receipts; (5) he did not introduce evidence that Williamson used a baseball

14 bat to attack Defendant; (6) he did not emphasize enough that Defendant’s hands were

15 uninjured when Defendant allegedly attacked Williamson with his hands; (7) and (8)

16 he did not try to impeach Williamson’s credibility with information that Williamson

17 stole and sold some of Defendant’s property to buy drugs, or that Williamson was

18 living in Defendant’s house, not Defendant’s mother’s house; (9) he did not seek to

19 introduce evidence that Williamson’s injuries were due to him falling on an octagonal


                                             4
 1 table; and (10) he did not cross-examine the officer on the many inconsistencies of the

 2 officer’s testimony that contradicted Williamson’s testimony. [MIO 12-14]

 3        There is a two-fold test for proving ineffective assistance of counsel: the

 4 defendant must show (1) that counsel’s performance fell below that of a reasonably

 5 competent attorney, and (2) that defendant was prejudiced by the deficient

 6 performance. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729.

 7 The burden of proof is on the defendant to prove both prongs. Id.

 8        In the first calendar notice, we noted that at trial, two of Defendant’s witnesses

 9 testified that Williamson was not the owner of the furniture or the scaffolding that he

10 alleged was taken from him. [DS 3] In addition, the person who accompanied

11 Defendant, Schroff, testified that they went to Williamson’s residence to retrieve

12 property that belonged to Defendant, and while there, Schroff saw property that

13 belonged to Defendant and Schroff. [Id.] Schroff further testified that they did not

14 enter the residence without Williamson’s permission. [Id.] Schroff also testified that

15 he did not witness Defendant battering Williamson. [Id.]

16        As we discussed in Issue I, however, the memorandum confirms that

17 Williamson testified that Defendant forced his way into the home, beat him, and stole

18 and damaged his property. [MIO 9-10] In addition, Williamson identified his injuries

19 and the damage to the house and property in photographs taken by Officer Hanker.


                                              5
 1 [Id.] The officer testified that he took statements from Williamson and Defendant

 2 who gave conflicting versions of the events. [MIO 10] As we have discussed, the

 3 jury, as fact finder in the case, found Williamson’s version of the facts to be credible,

 4 and we do not reweigh or resolve conflicts in the facts on appeal.

 5        To the extent Defendant claims that defense counsel should have recused Judge

 6 Counts for a conflict of interest, presented more witnesses, and placed more emphasis

 7 on Defendant’s defenses, we note that the three witnesses defense counsel did present

 8 addressed Defendant’s defenses, which were that the property was not stolen because

 9 it was Defendant’s property, and Defendant did not force his way into the home and

10 beat or injure Williamson. The decisions of which witnesses to call and what

11 testimony provides the requisite defense emphasis are strategy decisions that we do

12 not review on direct appeal. See State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M.

13 448, 10 P.3d 127 (stating that counsel is presumed competent); see also Lytle v.

14 Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (“On appeal, we will not

15 second guess the trial strategy and tactics of the defense counsel.” (internal quotation

16 marks and citation omitted)). Moreover, Defendant’s discussions with defense

17 counsel as to which witnesses and evidence to call and which are most effective for

18 the defenses are not matters of record on direct appeal. See State v. Roybal,

19 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (stating that if facts necessary to


                                               6
 1 a full determination are not part of the record, an ineffective assistance claim is more

 2 properly brought through a habeas corpus petition). Finally, to the extent Defendant

 3 argues that defense counsel should have recused Judge Counts for a conflict of

 4 interest, Defendant does not indicate what the conflict of interest was nor the basis for

 5 defense counsel’s decision not to recuse him, and thus we have no way of assessing

 6 the merits of these allegations on direct appeal. See id.

 7        We hold that Defendant has not made a prima facie case for ineffective

 8 assistance of counsel and, therefore, we affirm on this issue on direct appeal. State v.

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

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

11 Double Jeopardy

12        In the motion to amend, Defendant also argues that his double jeopardy rights

13 were violated by his conviction for larceny and robbery. [MIO 16] We are not

14 persuaded.

15        In State v. Bernal, 2006-NMSC-050, ¶ 28, 140 N.M. 644, 146 P.3d 289, our

16 Supreme Court discussed that this Court has previously recognized that “robbery is

17 distinct from larceny because it requires, and is designed to punish, the element of

18 force.” See State v. Brown, 113 N.M. 631, 634, 830 P.2d 183, 186 (Ct. App. 1992);

19 see also UJI 14-1620 Committee commentary (“The gist of the offense of robbery is


                                               7
 1 the use of force or intimidation.”); State v. Hernandez, 2003-NMCA-131, ¶ 9, 134

 2 N.M. 510, 79 P.3d 1118 (“A robbery conviction requires that the force or threatened

 3 use of force must be the lever that serves to separate the property from the victim.”

 4 (internal quotation marks and citation omitted.)). In Bernal, we further stated that the

 5 two crimes are distinct: “Since robbery generally carries a heavier punishment than

 6 larceny, the robbery statute clearly is designed to protect citizens from violence.

 7 Compare NMSA 1978, § 30-16-1 (2006) with § 30-16-2.” Bernal, 2006-NMSC-050,

 8 ¶ 28. That is, “[r]obbery is not merely a property crime, but a crime against a person.”

 9 Id. We hold that Defendant’s double jeopardy rights were not violated by his

10 convictions in this case for robbery and larceny.

11 CONCLUSION

12        We affirm Defendant’s convictions.

13        IT IS SO ORDERED.



14                                         __________________________________
15                                         LINDA M. VANZI, Judge




16 WE CONCUR:

                                              8
1 _________________________________
2 CELIA FOY CASTILLO, Chief Judge



3 _________________________________
4 JAMES J. WECHSLER, Judge




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