 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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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. 30,960

10 OSIE FIELDS,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
13 Mark Terrence Sanchez, District Judge

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

16 for Appellee

17 Albright Law & Consulting
18 Jennifer R. Albright
19 Albuquerque, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VANZI, Judge.

23          Defendant appeals his convictions for two counts of CSP in the first degree

24 (child under the age of thirteen). We proposed to affirm in a calendar notice, and we
 1 have received a memorandum in opposition to our notice. We have duly considered

 2 Defendant’s arguments, but we find them unpersuasive. We affirm.

 3        Defendant again argues that he was denied the effective assistance of counsel.

 4 In addition to his argument that trial counsel did not call certain witnesses and did not

 5 introduce certain evidence, Defendant now argues that his counsel was ineffective for

 6 submitting a less than complete docketing statement.

 7        As discussed in our calendar notice, a prima facie case of ineffective assistance

 8 of counsel requires a showing that trial counsel’s performance was deficient and that

 9 Defendant suffered prejudice. State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561,

10 113 P.3d 384. To demonstrate prejudice, Defendant must show that “there is a

11 reasonable probability that, but for counsel’s unprofessional errors, the result of the

12 proceeding would have been different.” Id. (internal quotation marks and citation

13 omitted). In response to our calendar notice, Defendant claims that he was prevented

14 from establishing an alibi based on his claim that he was incarcerated at the time of

15 the alleged offenses. Defendant suggests that he would have called his girlfriend and

16 the records custodian of the jail to testify that he was incarcerated in June 2007 and

17 was released around June 29, 2007. [MIO 2, 7] At trial, after the victim testified that

18 the events occurred in July 2007, the charges and jury instructions were amended to

19 conform to that evidence. [MIO 6] On cross-examination of the victim, defense


                                               2
 1 counsel was able to elicit an admission that the events were previously reported to

 2 have occurred in June 2007. [MIO 6] The jury was presented with allegations that

 3 the offenses occurred “on or about June or July 2007,” and with testimony from the

 4 victim that the offenses occurred in July 2007. [MIO 1, 6] Therefore, even if

 5 Defendant had been able to establish through witnesses or evidence that he was

 6 incarcerated in June 2007, Defendant has not demonstrated a reasonable probability

 7 that but for trial counsel’s failure to file a notice of alibi or failure to call witnesses,

 8 the jury’s verdict would have been different. Furthermore, Defendant has not

 9 demonstrated that, but for the defects in the docketing statement, there would have

10 been a reasonable probability that the jury would have found Defendant innocent of

11 the charges. We hold that Defendant has failed to present a prima facie showing that

12 his counsel was ineffective. Defendant may, however, pursue his claims through a

13 habeas corpus petition.

14        Defendant continues to claim that the evidence was insufficient to support a

15 finding that he “intentionally had sexual intercourse” with the victim. [MIO 9]

16 Defendant claims that the delay in reporting the offenses and the victim’s inconsistent

17 testimony show that the evidence was insufficient to support the convictions,

18 particularly where Defendant was incarcerated in June 2007. [MIO 9-10] Defendant




                                                3
 1 urges this Court to place this case on the general calendar rather than use the limited

 2 facts contained in the docketing statement and record proper.

 3        As discussed in our calendar notice, the victim testified that Defendant sexually

 4 penetrated her two times while she was staying at her grandmother’s home in June

 5 or July of 2007. [DS 2-4] Detective Black testified that his investigation revealed

 6 facts consistent with the victim’s allegations, and the SANE nurse testified that, based

 7 on examination of the victim, the victim had been penetrated. As for Defendant’s

 8 claim that delay in re porting and inconsistent testimony should lead to a

 9 determination that the evidence was insufficient to support the convictions, as

10 explained in the calendar notice, the fact finder determines credibility and weight of

11 the evidence, and the fact finder resolves conflicts in the testimony. See State v.

12 Hughey, 2007-NMSC-036, ¶ 16, 142 N.M. 83, 163 P.3d 470. We hold that there was

13 sufficient evidence to support Defendant’s convictions.

14        For the reasons discussed in this opinion and in our calendar notice, we affirm

15 Defendant’s convictions.

16        IT IS SO ORDERED.

17                                         __________________________________
18                                         LINDA M. VANZI, Judge




                                              4
1 WE CONCUR:



2 _________________________________
3 CELIA FOY CASTILLO, Chief Judge



4 _________________________________
5 JONATHAN B. SUTIN, Judge




                                  5
