State v. Smith ( 2013 )

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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. 32,645
5 KIMBERLY SMITH,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8 Steven L. Bell, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Acting Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 Smith appeals her conviction for aggravated battery with a deadly weapon. In
19 our notice of proposed summary disposition, we proposed to affirm. Smith has filed
1 a memorandum in opposition, which this Court has duly considered. As we do not
2 find Smith’s memorandum persuasive, we affirm.
3 Sufficiency of the Evidence
4 Smith contends that there was insufficient evidence to support her conviction
5 for aggravated battery with a deadly weapon. [DS 4] In our notice of proposed
6 summary disposition, we proposed to hold that, viewing the evidence in the light most
7 favorable to the verdict, the evidence was sufficient. In Smith’s memorandum in
8 opposition, she points out that evidence was presented that would have supported
9 acquittal, such as the fact that certain witnesses to the incident changed their testimony
10 and that certain witnesses may have been biased against her. [MIO 1-4] However,
11 when there is substantial evidence to support a verdict, the fact that there may have
12 been factual inconsistencies or credibility questions is not a basis for reversal. See
13 State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988) (providing that a
14 reviewing court “does not weigh the evidence and may not substitute its judgment for
15 that of the fact finder so long as there is sufficient evidence to support the verdict”);
16 see also State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary
17 evidence supporting acquittal does not provide a basis for reversal because the jury
18 is free to reject Defendant’s version of the facts.”). Accordingly, Smith has failed to
19 demonstrate that the evidence was insufficient.
20 Ineffective Assistance of Counsel
2
1 Smith contends that her counsel provided her with ineffective assistance. [DS
2 5] In our notice of proposed summary disposition, we proposed to hold that Smith
3 had failed to make a prima facie showing of either deficient performance by counsel
4 or that any deficiencies affected the outcome of her case. See Patterson v. LeMaster,
5 2001-NMSC-013, ¶¶ 17, 28, 130 N.M. 179, 21 P.3d 1032 (providing that in order to
6 establish a prima facie claim of ineffective assistance of counsel on direct appeal, the
7 defendant must show that (1) counsel’s performance was deficient in that it fell below
8 an objective standard of reasonableness, and (2) she suffered prejudice in that there
9 is a reasonable probability that the result of the proceeding would have been different
10 had counsel’s performance not been deficient). In Smith’s memorandum in
11 opposition, she lists a number of ways in which she believes that her counsel’s
12 representation was deficient, based primarily on counsel’s strategy at trial. However,
13 on appeal, this Court will not second-guess counsel’s trial strategy. See State v.
14 Gonzales, 113 N.M. 221, 230-31, 824 P.2d 1023, 1032-33 (1992). Accordingly,
15 Smith has failed to establish a prima facie case of ineffective assistance of counsel on
16 direct appeal. If she believes she can demonstrate ineffectiveness if given the
17 opportunity to present evidence at a hearing, she is free to seek other relief. See State
18 v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (expressing a
19 “preference for habeas corpus proceedings over remand when the record on appeal
20 does not establish a prima facie case of ineffective assistance of counsel”).
3
1 For these reasons, we affirm.
2 IT IS SO ORDERED.
3 __________________________________
4 LINDA M. VANZI, Judge
5 WE CONCUR:
6 _________________________________
7 CYNTHIA A. FRY, Judge
8 _________________________________
9 TIMOTHY L. GARCIA, Judge
4